The Nation had an article about “Non-disclosure agreements” (NDAs) which effectively bound victims to secrecy, barring them from publicly revealing their stories. NDAs are part of an arsenal of legal tools that employers and insurance companies have at their disposal to protect both their reputation and their bottom line—but those tools often come at the expense of victims. Another is “forced arbitration,” a provision in many contracts that requires victims to channel their 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.
“The Equal Employment Opportunity Commission estimates that 75 percent of abuse incidents go unreported, yet “anywhere from 25 percent to 85 percent of women report having experienced sexual harassment in the workplace.” Many are deterred by fear of retaliation—three in four respondents feared being re-victimized, in other words, for speaking out. But the commission also stresses that forced arbitration works against the public interest “by requiring individuals to submit their claims to private arbiters rather than public courts,” and the ability to rely on forced arbitration “can also weaken an employer’s incentive to proactively comply with the law.” Both policies, non-disclosure and mandatory arbitration, drive consumers and workers into silence and powerlessness by keeping their cases out of court.”