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Stop secrecy. End harassment.

Stop secrecy. End harassment.

Photo by Kat Smith, via Pexels

With the increase in public consciousness and discussion of sexual harassment in the workplace, a nefarious part of many employment contracts and settlement agreements has also come under long overdue scrutiny: non-disclosure agreements (NDAs). Public Justice has been at the forefront of the battle against NDAs and other secrecy provisions around sexual harassment and other issues for years. Such provisions are a common feature of arbitration agreements used in many employment contracts, and with our noted expertise in arbitration law, as well as court secrecy, Public Justice is helping to educate the public, and this critical moment of public debate, about how secrecy agreements empower harassers and silence victims of sexual harassment.

Soon after the revelations about Harvey Weinstein’s decades of sexual harassment, it was reported that he had spent years continuing his pattern of abuse by buying his victims’ silence through the use of settlement agreements that included NDAs. Women who took such settlements were forced into silence, and Weinstein’s history of harassment was kept out of the public eye. Even before the reports about Weinstein’s use of NDAs, Executive Director Paul Bland highlighted the use of arbitration clauses with secrecy provisions by the likes of former Fox News Chariman Roger Ailes, actor Charlie Sheen, and the former head of American Apparel, Dov Charney, to conceal harassment and abuse. When Gretchen Carlson – now an outspoken advocate for ending forced arbitration clauses – fought back against the clause in her own employment contract in order to make her allegations against Ailes public, Public Justice amplified Carlson’s voice by explaining in The New York Times and other media outlets why these provisions are so dangerous.

The problem of NDAs, however, goes far beyond celebrities and public figures in media. Secrecy clauses are frequently part of the arbitration provisions that are in more than half of employment contracts in the United States. Companies use these provisions to keep accusations of impropriety out of public view, such as when Jared and Kay jewelers sought to keep allegations of discrimination from tens of thousands of female employees secret through arbitration. NDAs are also forced upon people seeking to make complaints about harassment in Congress, which also mandates a process of mediation resembling arbitration.  Staff Attorney Leslie Bailey spoke about this issue, and the bills currently in Congress, that could fix this unfair system in a recent radio interview.

Public Justice’s work has always been focused on making sure everyone has access to justice, and a key part of that mission is making sure people’s voices are heard. By silencing the voices of victims, NDAs and secret arbitration prevent justice from being served, and we will continue to fight against them. Fortunately, Congress is now beginning to take notice, too. Legislation has recently been introduced – with bipartisan support – to ensure victims, and not harassers, are empowered to decide if settlements are made public or not. At the end of the day, the law should look out for those who are the targets of harassment and assault, and not those who are engaged in such behavior.

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