“Kill it.”
That’s what former Democratic presidential candidate and former New York City Mayor Michael Bloomberg is alleged to have said to Sekiko Sakai, a Bloomberg LP employee, after she told him she was pregnant. While the conversation took place in 1995, it’s a topic of conversation now because of the nondisclosure agreement (NDA) Sakai signed after bringing a lawsuit against the company.
Raising the issue on the Democratic debate stage on February 19, Sen. Elizabeth Warren asked Bloomberg how many NDAs he’d signed and whether he would let the signatories share their stories. Bloomberg was initially defensive, saying that two parties signed the agreements “and we’ll live with it,” but changed course the next day by releasing three women from NDAs related to “comments they said I had made.”
On March 2, The New York Times reported on the use of NDAs at Bloomberg L.P., where, according to various lawsuits and an interview, men at the company rated the “hotness” of their female colleagues.
Earlier, on February 28, the Associated Press reported that a political advocacy group founded by presidential candidate Sen. Bernie Sanders entered into an NDA with a political consultant who claimed racial discrimination against her at the organization and in the 2016 presidential campaign.
While Bloomberg exited the race after failing to gain support on Super Tuesday, we can expect to see more stories of this kind during the primaries, which is why the entire Democratic presidential field should use this opportunity to end the practice of using NDAs for harassment and misconduct claims, and help advance the #MeToo movement. Presidential candidates should release any individuals from NDAs they are bound to related to harassment or misconduct, on the campaign or in past employment; call for an end of the use of NDAs that hide misconduct; and once in the White House, call for greater transparency in how both public and private-sector employers respond to workplace harassment and discrimination.
An NDA is what it sounds like — an agreement between two parties to keep information secret. Some NDAs are signed when a person starts a job, and they agree not to share knowledge about trade secrets or how the business runs. These kinds of agreements, however, can also prevent talk about unlawful conduct they see on the job, like sexual harassment.
Other NDAs are signed as part of negotiated settlements following a workplace incident in which the parties agree to not disclose information about specific events at issue, the settlement terms and other details.
As the #MeToo movement has progressed, it has shown how NDAs have been used to keep information about workplace sexual harassment and discrimination under wraps. For example, disgraced movie mogul Harvey Weinstein used NDAs both in employment contracts and as part of settlement agreements.
A group of Weinstein Company employees described the effect of the confidentiality provisions in their employment contracts this way: “We all knew that we were working for a man with an infamous temper. We did not know we were working for a serial sexual predator.” NDAs like those in effect at the Weinstein Company keep individuals from knowing the truth about a workplace and its culture.
Surprisingly, harassment-concealing NDAs can be bad for businesses, too. Purchasing the valuable silence of employees disincentivizes companies from addressing their toxic workplace cultures that allow for harassment in the first place. Consider Wynn Resorts, the casino giant that used NDAs to hide the behavior of its then-CEO, Steve Wynn. A regulator found that the NDAs were structured to avoid detection by casino regulators and the company’s board of directors. When journalists brought the settlements to light, Wynn himself resigned after the company’s share price fell and it was forced to pay millions in fines.
The field of Democratic candidates should lead on this issue by dropping the use of NDAs related to harassment and misconduct in their campaigns and businesses, and release individuals from any and all prior NDAs related to harassment and misconduct.
Changing workplace culture is a crucial first step to changing business practices and the law. They’d be in good company — Supreme Court Justice Ruth Bader Ginsburg recently remarked that she hopes courts will not enforce confidentiality pledges based on sexual harassment allegations.
The issue of NDAs isn’t limited to the field of Democratic candidates. President Donald Trump has used broadly worded NDAs in his 2016 campaign for volunteers and staff, and for White House employees, prohibiting the sharing of all non-public information an employee learns of on the job. By taking action on NDAs and showing both personal and policy commitment to safe workplaces, the candidates will compare favorably with President Trump.
Next, more state legislatures should limit the use of NDAs both in employment contracts and in settlements. At least 10 states limit the use of NDAs. Some prevent NDAs on the topic of sexual harassment; others bar NDAs concealing any form of unlawful conduct. Massachusetts is currently considering a ban on sexual harassment NDAs and a similar bill in New Mexico awaits signature from Gov. Michelle Grisham. More states should take these necessary steps.
Third, businesses should lead by dropping the use of NDAs that prevent workers from speaking about harassment or discrimination.
The #MeToo movement is shifting the ground beneath toxic individuals and companies. Campaigns such as Lift Our Voices — founded by former Fox News contributors Gretchen Carlson, Julie Roginsky and Diana Falzone — are calling on all presidential candidates to support an end to the use of NDAs and forced arbitration provisions that silence workers from speaking out on toxic workplace cultures.
No organization or individual should be able to use NDAs to cover up past (or future) misconduct. Companies need to understand that they must rapidly fix abusive workplace cultures without counting on hiding behind NDAs that the public abhors and courts (eventually) will not enforce. By calling for an end to NDAs on workplace harassment and misconduct, presidential candidates can show a commitment to transparency, an important step to creating safe workplaces.
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