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Silence Isn’t Golden

We Need Our Voices Back

In 2014, my family tried to rent a home in the D.C. area. We felt we had been repeatedly subject to multiple forms of discrimination, so we filed a complaint. After over two years of pursuing our case alone, the Attorney General came to our rescue and took up our case on our behalf. Eighteen months later, we decided to accept a settlement payout.

I can’t get into details about what happened, and with whom, mostly because I signed a non-disparagement clause as part of my settlement, which limits me from talking about my discrimination case in any real detail.

Signing a settlement agreement doesn’t mean you’re suddenly over the series of incidents that led to the suit. I can tell you that you never “get over” these things. In my case, taking a settlement simply meant one thing: I was tired.

I was tired of fighting off intimidating letters, pleadings and lawyers.

I was tired of process servers showing up at our house at all hours of the night.

I was tired of having a lawsuit dictate every second of my life for four years.

When I filed suit, I wanted someone to answer for what I saw as a fundamental violation of my family’s rights. I don’t regret fighting for myself or for my family. But when you embark on a journey like mine, you become a prisoner of your own battle. In my case, taking a settlement was best for my sanity, my family and my career.

Non Disclosures in the Workplace

“Settlement silence” scenarios are not exclusive to housing discrimination claims: in fact, one third of the U.S. workforce is bound by some sort of non disclosure agreement (NDA). 

NDAs are nothing new. NDAs can be used by employers for a number of reasons. They can serve a legitimate purpose in the workplace in protecting trade secrets or other confidential information such as intellectual property or information about a company’s clients.

But in many cases NDAs are being abused, and people who sign them are not made aware of their rights. NDA agreements have grown in both number and scope and have been used to cover up discrimination, harassment and victimization in just about any imaginable industry. In essence, many NDAs are being used to silence the victim, when the real focus should be on eliminating the inappropriate and often illegal actions.

NDAs often prevent employees from speaking up against corporate culture or saying anything that would portray the company and its executives in a negative light, and this inability to speak can have a direct impact on our wellbeing.

I’m a lawyer, so let’s look at the legal profession for a moment. Many mental health and wellbeing problems in the legal profession can be traced to three things: hopelessness, lack of belonging, and unmet expectations. Work culture is often at the root of these issues. Companies, and the people who work for them, sink or swim based on workplace culture. We can’t talk about improving employee wellbeing without analyzing a company’s culture.

How Can You Improve a Culture You Can’t Even Discuss?

The fact that many NDAs also have non- disparagement clauses preventing people from speaking out against an organization’s corporate culture is particularly problematic. How can we improve an organization’s culture if we aren’t allowed to talk, or even know, about it?

For companies seeking to put gender parity and inclusion initiatives into action, narrowly tailoring or eliminating NDAs can be a pathway forward: allowing people to speak openly signals to prospective employees that they have a healthy workplace culture.

McDonald’s is solidifying its commitment to an inclusive workplace by no longer requiring arbitration of harassment and discrimination claims as a condition of employment. This is important because many arbitration agreements loop restrictive confidentiality and non-disparagement clauses into their language.

This may seem like a boring give by McDonald’s; after all, it’s not nearly as sexy as a paid vacation. But hear me out.

If we are being honest with ourselves, most of us are focused on our salaries and benefits: not many people are in the position to walk away from a job offer because of the wording of an arbitration clause 36 paragraphs deep into a contract. Sadly, some employees don’t understand the gravity of a forced arbitration and confidentiality clause until it’s too late and they have already been subject to some form of harassment or discrimination.

The overuse of NDAs doesn’t just impact the employees who signed them. They impact the entire culture of the organization. Employees will naturally feel deterred from speaking in a culture of silence, and will just as naturally be comfortable enough to speak up when their environment allows and encourages the same.

Part of employee wellbeing comes from having the ability to speak up about any perceptions or incidents of harassment or discrimination. The best way for an organization to tackle the root causes of its problems is to know what they are.

Changing the Status Quo

A quiet storm of influential organizations, lawmakers, and change agents are slowly shifting the status quo to end the harmful practice of mandatory NDAs. New Jersey has already passed a law prohibiting enforcement of certain mandatory arbitration and non- disclosure provisions in employment contracts and settlement agreements, and California banned forced arbitration as a condition of employment.

Lift Our Voices is a movement advocating for the restriction of mandatory NDAs, confidentiality provisions and forced arbitration clauses that prevent employees from publicly discussing and disclosing toxic workplace conditions, including sexual harassment and discrimination.

When it comes to NDAs, real change happens from both the top down and the bottom up. We need leaders to take a serious look at their internal practices and policies and make necessary changes to root out existing problems. When organizations make it clear that harassment and discrimination won’t be tolerated or protected by an NDA, the market’s best and brightest employees will take notice.

At the end of the day, every business is about its people. If employees aren’t being treated fairly, eventually they will leave. We need to treat them well enough so they don’t have to. 

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