With sexual-abuse scandals bubbling out of Hollywood, Capitol Hill, and corporate boardrooms nationwide, you might wonder why the accusers kept their suffering a secret for years, before realizing in recent weeks that they weren’t alone. There’s more than fear behind their silence: Their lips were sealed with a signature. In Harvey Weinstein’s case, “non-disclosure agreements” (NDAs) effectively bound victims to secrecy, barring them from publicly revealing their stories.
NDAs are part of an arsenal of legal tools that employers have at their disposal to protect their reputation and their bottom line—but those tools often come at the expense of wronged employees. Another is “forced arbitration,” a provision in many employment contracts that requires employees to channel their workplace disputes through an extralegal negotiation process, rather than through the courts. Under Obama, the Consumer Financial Protection Bureau had banned forced arbitration in employment contracts, but last month Trump and Congress killed that protection.
According to the National Women’s Law Center (NWLC), both forced arbitration and NDAs have in many workplaces become a standard tactic to preempt workers from taking legal action or disclosing sexual-harassment and -assault charges. These agreements force workers to sign away their rights in exchange for a job, by making them agree to settle future disputes outside the courts through an opaque negotiation process controlled by management and lawyers—effectively sentencing women to silence before they ever step into a courtroom.
A case study is journalist Gretchen Carlson’s ordeal with Fox News mogul Roger Ailes. After suffering repeated harassment and retaliation by Ailes and Fox, Carlson was reportedly blocked from going public with her story because her prized media job came with a clause that would automatically channel future disputes into arbitration proceedings. The contract ensured that in the abuse case she eventually settled “all filings, evidence and testimony connected with arbitration, and all relevant allegations and events leading up to the arbitration, shall be held in strict confidence.” The language is unusually restrictive, but probably within the law.
As formal contracts, gag orders could be justified on the assumption that they are mutually agreed upon between private individuals. Theoretically, arbitration could offer a more efficient way of settling corporate disputes and supposedly save both the accused and the accuser the trouble and cost of protracted litigation. But in a corporate culture where men feel entitled to women’s bodies, where women are taught to get ahead by doing as they’re told and their career prospects hinge on the approval of powerful men, there’s little stopping arbitration from becoming an extrajudicial arena for covering up abuse.