In light of the Me Too movement, one question dominates the cultural conversation: Is anything even changing? Survivors are sharing some of their most intimate, traumatic stories, but is it leading to actionable differences? In a word: Yes.
One example comes in the form of a media giant, NBCUniversal, moving to allow its former employees to be released from their nondisclosure agreements (NDAs) if they want to speak out about sexual misconduct they allege happened while at the network. Meaning, they’ll be able to share their stories without legal ramifications.
The latest development is that six former staffers at 21st Century Fox—obviously, another media giant—are hoping Fox will do the same. Of these six, you’ll likely remember Gretchen Carlson, who filed a sexual harassment lawsuit against Roger Ailes, who was, at the time, chairman and CEO of Fox News. While Fox sided with Carlson (she had years worth of secretly recorded tapes to prove her allegations) and granted her $20 million in a settlement, Carlson no longer works in TV journalism. And while that’s a lot of money, it doesn’t erase trauma. NDAs also keep that trauma silenced.
“None of us asked to get into a workplace dispute,” Carlson told Diana Falzone at Vanity Fair. “We simply had the courage to stand up and say something—but in the end it’s our voices no one can hear. Because of our NDAs, we can never say what is factually correct or incorrect about what happened to us at Fox.”
The problem doesn’t live and die with Fox, however. On Friday, Rachel Maddow of MSNBC gave the official word while on her show: NBCUniversal (the parent company of NBC News, as well as of MSNBC) will now permit former employees to be released from their NDAs in order to talk about sexual misconduct.
The statement reads: “Any former NBC News employee who believes that they cannot disclose their experience with sexual harassment as a result of a confidentiality or non-disparagement provision in their separation agreement should contact NBCUniversal and we will release them from that perceived obligation.” Notably, women must contact the company’s legal department to be granted permission to talk.
Now, that’s a step. But as many advocates for survivors point out, it’s a step that doesn’t go far enough. “NBCUniversal’s statement is not enough. The company should not make any former employee, specifically women, go begging on their hands and knees back to NBC to be released from an NDA. Women have already been through hell with this company,” Linda Vester, a former NBC News anchor who accused Tom Brokaw of sexual harassment, said in a statement to Variety magazine.
Why now? NBC has faced increasing backlash for how it responded to the sexual assault allegations made against former Today show host Matt Lauer after a colleague said that he had raped her in a hotel room while they were both in Russia to cover the Winter Olympics in 2014. He maintains it was consensual. Most recently, journalist Ronan Farrow wrote about this sexual assault allegation in his book, Catch and Kill, which he chatted about with Maddow on her show. Specifically, he said that NBC had made that reporting (along with the Harvey Weinstein story, which eventually earned him a Pulitzer) extremely difficult. Lauer, by the way, was fired in November 2017 because of a sexual misconduct complaint.
As first reported by Vanity Fair, six former Fox News employees are asking to be released from their NDAs. While it’s not confirmed that all six women want to be released in order to discuss sexual harassment allegations (as opposed to other forms of work disputes), Carlson spoke to that intent with Vanity Fair.
“Until we get rid of NDAs for sexual harassment or assault, women will never be truly equal,” she explained to the magazine. “NDAs grant the ultimate secrecy, serving to keep our society’s gender inequality intact.”
In any industry, NDAs can be tough. As a rule of thumb, they exist to protect employers rather than employees. As one might gather from the situations at NBC and Fox, NDAs served to protect employers against being criticized by former employees. Originally, NDAs were designed to protect industry trade secrets. How far NDAs can reach is sort of a circular problem, in that because they’re meant to conceal information, it’s difficult to discuss them outside of the company’s legal department. Thus, people don’t always know the scope of what they’re signing or how it might compare elsewhere.
If you’re thinking, well, these people don't work there anymore. What’s the risk of violating an NDA? In short: being sued for major money. Financial retribution is the biggest concern, as well as industry blacklisting.
If all of this sounds ethically dubious, that’s because it (usually) is. In Arizona, California, Maryland, New York, Vermont, and Washington state, bills now include provisions that restrict private employers of NDAs in sexual harassment cases. In the bigger picture, employee rights activists are fighting to get rid of NDAs entirely.
As of 2018, the EMPOWER Act, which has been introduced in versions in both the House and the Senate, would require companies to disclose how many harassments claims it settles each year, along with how much it pays out in said settlements. Most importantly, it would also allow employees to speak out or “disparage” former employers when it comes to sexual harassment, along with other workplace disputes.
NDAs are obviously a worker’s rights issue. But they’re a survivor’s issue, too. Women (and non-binary people) shouldn’t have to live in terror when it comes to sharing their stories of survival, and changing the norm with NDAs is one step in giving survivors back their voices.