In the weeks after George Floyd’s death, protests in support of social change have swept the country. Instagram feeds have been filled with images of Mr. Floyd, as well as Breonna Taylor and Ahmad Arbury, and pleas for donations to bail funds and protest updates populated many Twitter timelines. No shortage of fashion designers, brands, and media outlets were quick to weigh in, with many companies issuing statements of solidarity and support for protesters and those fighting for social change. At least some pledged to donate to anti-racist organizations.
While some brands’ and media outlets’ statements included direct action – whether it be in the form of donations or commitments to organizational change, critics have suggested that some statements felt superficial and performative in nature. They were viewed with a particular skepticism, especially amongst BIPOC employees within those organizations, who have contended that their experiences do not reflect the level of solidarity that companies have been portraying or promoting, and sometimes, the situations they confronted at work, were much, much worse.
In light of a larger dialogue about racial justice, social media and traditional media outlets, alike, have been flooded with stories of employees alleging harassment and discrimination, and sharing other stories of microaggressions that resulted in hostile workplaces. This groundswell of allegations is reminiscent of the #MeToo movement that swept the globe in 2017, which saw many women come forward about workplace sexism, harassment, and sometimes, even allegations of assault. This time, however, some things will be different. After the rise of #MeToo, legislatures around the country adopted new statutes aiming to protect against this kind of behavior, and the contractual obligations that had successfully silenced it.
The evolving treatment of non-disclosure agreements – or NDAs – has been particularly striking in the wake of #MeToo. While these common contractual agreements (or confidentiality terms reminiscent of an NDA), continue to find their way into an ever-increasing number of situations – from employment agreements and severance packages to visitor logs at co-working spaces and pre-job interview paperwork, they are not always as sweeping or iron-clad as they may seem. In fact, NDAs and confidentiality terms are frequently limited by law in terms of the subject matter for which they can obligate silence.
In 2018, for instance, New York state’s legislature outlawed the inclusion of confidentiality or non-disclosure provisions in any settlement, agreement, or other resolution of a claim for which “the factual foundation … involves sexual harassment” unless the victim wants to include the provision. A year later, New York expanded the subject matter further to include any kind of discrimination. Many states have similar laws, and at the same time, federal tax law prohibits the tax deductibility of any settlements or severance payments, or attorney fees where a non-disclosure provision is included in a settlement of a sexual harassment claim.
Even in states where the law does not restrict the use of NDAs, these legal instruments may ultimately carry little weight in court, as courts have been known to strike down NDAs that interfere with the Equal Employment Opportunity Commission’s (“EEOC”) enforcement of Title VII and other anti-discrimination laws. In its opinion in EEOC v. Astra, for example, the U.S. Court of Appeals for the First Circuit stated that “if victims of or witnesses to sexual harassment are unable to approach the EEOC or even to answer its questions [due to the existence of NDAs], the investigatory powers that Congress conferred would be sharply curtailed and the efficacy of investigations would be severely hampered.”
Looking beyond such legal developments, other elements are proving to be increasingly relevant in a consideration of NDAs and their applicability. For instance, in situations where non-disclosure terms may legally be upheld, the negative publicity that may result from a company pursuing legal action in court and in the public sphere against an employee (or former employee) for speaking out against workplace abuse could prove to be an effective deterrent against enforcement.
Moreover, workplace unions, which have increased their footprint in the media and fashion industries in the past several years, are fighting to limit the use of NDAs by employers and to provide additional protections for members. In February, for instance, mounting pressure from unionized staff prompted Condé Nast – the publishing giant behind Vogue, Vanity Fair, GQ, and The New Yorker, among other titles – to announce that it would end use of NDAs in matters involving discrimination and harassment. Other companies have taken similar stances.
Even without the use of NDAs, though, there are ways that employers ensure confidentiality in disputes, including by way of mandatory arbitration. Up until recently, employee agreements, as well as NDAs, routinely included language requiring that arbitration be the method for handling disputes for all claims relating to such agreements and thus, to an individual’s employment. A form of alternative dispute resolution, arbitration – as distinct from court proceedings – typically ensures confidentiality and a non-appealable decision.
Unsurprisingly, legislatures are pushing back on this practice in connection with certain situations: mandatory arbitration of sexual harassment claims is against the law in New York, and early this year, California outlawed mandatory arbitration for any employee discrimination or labor code claims.
In the wake of such mounting change, individuals that come forward about harassment and discriminatory behavior face a more forgiving legal landscape than in years prior, which bodes well for the state of workplaces across the country. But while the law may be leaning towards more transparency among employees that have been subject to various abuses on the job, these new-found protections do not change the fact that many companies have allegedly operated in – and in many cases, intentionally fostered – cultures of silence for years due to the widespread inclusion of NDAs in employees’ and contractors’ agreements (even after the rise of #MeToo).
Oftentimes, blanket NDA usage is the standard and companies receive pressure from within (especially from their legal departments) to adhere to such provisions no matter to context of a situation. As a result, many employers continue to leave language of questionable enforceability in their agreements, which in turn discourages employees from coming forward about harassment and discrimination, even if they may be legally protected in doing so.
The headline-making pattern of individuals speaking out in recent weeks sheds light on alleged patterns of discrimination within the ranks of reputable media companies, fashion brands, and other seemingly progressive “millennial” focused companies. On June 19, for example, Tiffany Wines, an employee at media company Complex, posted several text pages to Twitter, claiming that the company was not a safe place for Black women, and was “a toxic workplace … steeped in misogyny, anti-Blackness, favoritism, rape culture and pay inequity across demographic lines.” Wines stated that she had not spoken up until the current moment due to a separation agreement that included non-disclosure language. Several colleagues have spoken out on Twitter to back up her claims up and allege other problematic behavior coming from Complex.
Also last month, Refinery29 co-founder and editor Christene Barbarich resigned from her post at the female-focused media company after several employees openly complained of alleged racism at work and pay inequity amongst the company’s ranks. One former employee asserted that there was a “toxic company culture where white women’s egos ruled the near nonexistent editorial processes.”
Around the same time, Audrey Gelman, the co-founder and CEO of women’s coworking space The Wing stepped down from her position with the company as a result of allegations and demands made by current and former staff members about the company’s culture and its treatment of non-white employees.
In the retail space, ex-staffers from Everlane took to Instagram to complain of a hostile work environment for Black employees, sharing numerous allegations of pay inequity, racist behavior and possibly even labor law violations. In doing so, they specifically pointed to their solidarity with the customer experience employees at Everlane, who had expressed their intention to unionize, and condemned Everlane corporate’s hiring of a notoriously anti-union law firm to address the situation.
Still yet, Elle Santiago, a former employee of Reformation, accused the company of engaging in “systematic racism,” prompting backlash against the buzzy sustainable fashion brand, as well as an announcement from founder and CEO Yael Aflalo, who said that she would step down from the company’s top job.
Ultimately, unions and legislation are effective tools to combat pay inequity and employer leverage in the form of non-disclosure and severance obligations, but the ongoing stream of allegations – which have also been lodged against Condé Nast, media outlet Bustle, lifestyle platform Ban.do, and fashion brand Zimmermann, among a swiftly-growing list of others – seems to indicate that workplaces have a long way to go.
Last month, the Supreme Court held in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964’s prohibitions on sex-based discrimination also apply to gay and transgender individuals. This ruling extends employment discrimination protections in many places where state law did not already offer such protections, and as a result, it further limits the use of NDAs with respect to those discrimination claims.
Employers should heed the direction of jurisprudence and legislation, and always tread carefully with how and when they choose to include – and enforce – NDAs.
Jessica Meiselman is a tech and IP focused lawyer. She has been published in Vice, Pitchfork, Vanity Fair, Artsy, Complex and Fader.
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