Congress passes law banning non-disclosure agreements in sexual harassment cases

A bill limiting the enforcement of non-disclosure agreements in sexual harassment disputes is headed to President Biden’s desk after the House of Representatives passed the legislation in a bipartisan vote. Lisa Desjardins reports on the Speak Out Act and who it will impact most.

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  • Judy Woodruff:

    A piece of legislation limiting the enforcement of nondisclosure agreements in sexual harassment disputes is headed to President Biden's desk for his signature after the House of Representatives passed it in a bipartisan vote.

    Lisa Desjardins has our report on the Speak Out Act and who it will impact most.

  • Lisa Desjardins:

    Roughly one-third of American workers are bound by some form of a nondisclosure agreement, or NDA, preventing what they can say about their work experience.

    The Speak Out Act, about to become law, would mean that NDAs signed when employees take their job could no longer stop them from speaking out about sexual harassment or abuse. It's a systemic change coming directly from the MeToo movement and from this woman, Julie Roginsky, co-founder of Lift Our Voices, a nonprofit dedicated to ending workplace rules that favor harassers and abusers.

    Julie, thank you for joining me.

    Help us understand, how many workers would the Speak Out Act affect, and roughly how?

  • Julie Roginsky, Co-Founder, Lift Our Voices:

    Well, we don't know because we're not sure how many workers are actually bound by these kinds of arbitrate — or — excuse me — by these kinds of NDAs, primarily because they're secretive, right? You're not even allowed to say that you have an NDA.

    So, for a lot of workers, they're not even allowed to tell you that they have one. And, ultimately, what it's going to do is help, we estimate, millions and millions of workers not just talk about their own experiences, but also talk about experiences that they may have witnessed.

    There are plenty of people who've been witnesses to horrible instances of sexual harassment and sexual assault who simply aren't able right now to even share with their colleagues or even with a survivor what they seen, what they know, in order to stop the predatory behavior.

    And this bill will make sure that those people will be able to speak out about it publicly.

  • Lisa Desjardins:

    Now, this is not retroactive.

    And that means that, for example, you are not going to be able to, because of this law, speak about what you experienced at FOX News because of the NDA you signed there, and the same for your co-founder, Gretchen Carlson.

    But to the degree that you can, can you help us with what your experience is about how these NDAs work, what they do?

  • Julie Roginsky:

    I was actually bound by two NDAs in my life. One was, as you said, with FOX News, and that's a post-dispute NDA, which this bill doesn't apply to. That means it was signed as part of a settlement.

    The other NDA that I was bound to was with the governor of New Jersey, Governor Phil Murphy. And that was on the first day of work. And, of course, an NDA like this would absolutely apply to that case, because, in that instance, I was a witness to horrible toxicity on his campaign. I spoke to him about it.

    I confided in him that, if he didn't get it under control, something bad was going to happen. And, sure enough, something did happen. A young woman came to me about a year later, and told me that she'd been sexually assaulted by one of my colleagues.

    Instead of being able to talk to her about it, I was reminded by his attorneys, by Governor Murphy's attorneys over and over that I couldn't speak to her because I was bound by an NDA. I couldn't tell her anything I'd witnessed, anything I had experienced, or even really tell her that she wasn't alone, that I'd heard of other women who were in similar situations.

    That was an incredibly heartbreaking moment in my life, because here you have a young woman who's coming to you asking for help, and you can't even tell her why you can't help her, because my NDA was so broad, I couldn't tell her I had an NDA.

    And so, as a result of that experience, that really motivated me to make sure this was never going to happen to anybody else. That's why Gretchen and I got together to form Lift Our Voices. That was my experience that really motivated me to form Lift Our Voices. And that was my experience that really motivated me to make sure that the Speak Out Act was never going to prevent one more person from being able to tell their own stories or the stories of other people.

  • Lisa Desjardins:

    You did touch on one thing, though.

    This act would not change any nondisclosure agreements that are signed as part of a settlement. Are you worried that that could be a means to pressure people who are suffering abuse and still kind of have that code of silence enforced?

  • Julie Roginsky:

    Well, certainly, this bill doesn't do everything we wanted. From the perspective of Lift Our Voices, our organization, we strongly believe that you should have no NDAs whatsoever for any kind of toxic workplace experiences.

    And this bill doesn't go that far. What this bill does do is make sure that, if you are suffering from sexual harassment or sexual assault, or you're witnessing those things happening to you or to somebody else, what you're able to now do is talk about it publicly before you file a lawsuit, before you have to actually go to court to state your case.

    And that's so important for so many people, because they don't necessarily want to file a lawsuit. What most women, in my experience, want to do is just to continue working, but they want to be able to warn others about predators in their midst. They want to be able to warn others about perils that they may be encountering, or just to have somebody to talk to you about what's happening to them at work.

    Right now, these NDAs are so broad, you can't talk to your colleagues, to your loved ones, sometimes to your priest, to your rabbi, to your therapist, to anybody about what is happening to you. What this means is now you can if you have suffered from sexual harassment or sexual assault. And that's so important from — not just from the perspective of a good workplace experience, but also from the perspective of just making sure that people are able to get this off their chest and confide in others about what's happening to them.

  • Lisa Desjardins:

    This is coming just after the five-year anniversary of the MeToo hashtag really just opening up a public view on the scope and scale of sexual assault and harassment in our society.

    But I wonder now, five years later, where do you think we are with the recognition and attention to those issues?

  • Julie Roginsky:

    We strongly believe at Lift Our Voices that we're making progress.

    We just passed a forced arbitration bill earlier this year that the president signed that precludes people from having to go to forced arbitration if we have been sexually harassed or sexually assaulted. We just passed the Speak Out Act. And we're not going to stop.

    And I think, for those people who think the MeToo movement was a flash in the pan and the public has moved on, you see that that's not the case. Not only are we passing federal legislation, but we're also passing legislation at the state level. In 2019, New Jersey became the first state in the nation to get rid of NDAs for all toxic workplace issues.

    The same thing happened in California and Washington state. And companies are paying attention as a result of that Washington state law passing. Microsoft, for example, got rid of NDAs for their global work force. So, the MeToo movement is full steam ahead. It is not a flash in the pan.

    For all the setbacks that people sometimes see, look, sometimes, it's one step back, but two steps forward. And this is not a passing fad. We are going to get this done and make sure that women can work with dignity every single day without having to worry about harassment, assault or any other MeToo issues that we have heard so much about in the past five, six, seven years.

  • Lisa Desjardins:

    I know you're also working on racial, aging, gender, all kinds of other discrimination as well. So we will stay tuned.

    Julie Roginsky of Lift Our Voices, thank you so much.

  • Julie Roginsky:

    Thank you so much.

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