#MeToo showed us the impact of our shared voices. But six years later, too many workers are prohibited from telling their stories of workplace sexual harassment.
- Six years after #MeToo went viral, significant state legislation has gone into law, with 25 states plus D.C. passing over 80 anti-harassment bills.
- Bipartisan action from the federal government led to President Biden signing both the Speak Out Act, to address predatory nondisclosure agreements; and the Ending Forced Arbitration of Sexual Assault and Harassment Act, to restore the ability of workers to take their employers to court—both in 2022.
- As reported by the National Women’s Law Center, this legislative progress is welcome, but there is more work to be done.
- Women of color, trans women, and women with disabilities experience disproportional abuse and are the most likely to be harmed by NDAs.
In 2006, the activist, consultant and leading voice against sexual assault Tarana Burke founded the hashtag #MeToo. Over a decade later, in 2017, in the wake of Hollywood sex abuse scandals, #MeToo went viral. For women online during that time, the hashtag was perfect. There was no mistaking what those two words meant, and both made sense in context with larger narratives and were commanding on their own.
While there was something of a collective catharsis as powerful abusers experienced very public falls, many survivors were left wondering if any true legal reform would materialize.
In the six years since #MeToo became a national conversation, more than 80 anti-harassment bills were passed by 25 states and the District of Columbia, the National Women’s Law Center (NWLC) reported in September.
The federal government noticed—and in October 2022, Congress passed the Speak Out Act, which limits how employers can use nondisclosure agreements in the case of a claim or dispute regarding sexual harassment.
Despite this undeniable progress, many workers are still left without protections and are prohibited from sharing their experiences—and if #MeToo showed us anything, it was the real impact our shared voices have.
What Are Nondisclosure Agreements?
At the heart of the Speak Out Act, are nondisclosure agreements, or NDAs. An NDA, sometimes called a “confidentially agreement,” is a very common document many people have signed in the course of regular employment. An NDA might compel a worker, for example, to keep the proprietary information or trade secrets of a company private, and in this case, an organization is—and rightly so—protecting its intellectual property, customer information, or even financial records. In the past, NDAs also limited the employee’s ability to go public about nearly anything, including working conditions and sexual assault allegations.
As a precursor to Speak Out, in May 2022, Congress passed the Ending Forced Arbitration of Sexual Assault and Harassment Act. Forced arbitration clauses are often contained within NDAs, and revoke an employee’s right to take a dispute with their employer to court. Instead, both parties must use a company-selected arbiter to resolve conflicts.
The language in NDAs usually does not seem predatory on the surface. After all, no one takes a job with the expectation that they will have to enter into arbitration.
Sexual violence happens every 68 seconds in this country.
Tarana Burke
As someone who has worked in corporate America, I have personally signed many NDAs, some running over 20 pages of legal language. It is not so simple as declining to execute the document if there is something that does not feel right: It is a condition of employment. In those moments, paying the bills or providing for a family to feel much more critical than niggling over a few lines in an employment contract.
This is where employers have extreme leverage over employees. This is also where new legislation helps mitigate against the hold NDAs had over workers previously.
What Do These New Laws Do—And What Is Left Out?
It is extremely important that recent legislation around NDAs and arbitration names how these structures have been used to silence survivors of sexual abuse.
Yet, these laws do nothing for those who have a post-employment claim and also do not curb the use of NDAs in a settlement, even if the settlement is specifically related to actions that took place on the job. When 52 percent of all U.S. workers report experiencing sexual harassment or violence in the workplace, the situation is dire. Add to that: When one in seven women have sought a new job, changed jobs, or quit a job because of harassment or assault (according to the National Sexual Violence Resource Center), worker protections remain crucial.
In a ProPublica investigation co-published with New York Magazine and recently produced as a podcast, journalist Laura Biel tells the story of an OB-GYN at Columbia University who sexually assaulted patients across decades.
The women in Biel’s reporting would not have been protected by employment law but dealt with the same problem of silencing in both judgments and settlements. It is another example of how seeking justice can come with a gag.
And, while the specific language around sexual assault and harassment is deeply important—after all, lumping these offenses into the same category as spilling the beans on trade secrets is clearly not apples to apples—we also know that these incidents do not happen in a vacuum.
As NWLC notes, women of color, who likely have experienced racist components alongside sexual harassment, may not be able to fully communicate the full extent of their experience and still be protected. Trans women and women with disabilities also have documented higher rates of workplace harassment and violence.
What Is Next?
States are leading the charge, but just as we have seen in reproductive care, federal provisions remain the most durable. It is laudable that 25 five states have enacted additional protection for workers against abusive NDAs and offer added legal shields when it comes to sexual harassment beyond federal statutes.
That leaves 25 states that have not.
Bottom line: National legislation helps protect all workers, but until those laws become inclusive enough to address the intersectional reality of sexual harassment and assault, many survivors will not be able to speak their full story.
#MeToo remains more than a hashtag. Even though the viral moment has faded, for now, it is still a call to action. As Tarana Burke said, “If sexual violence happens every 68 seconds in this country, do you have any idea of the millions of people who have had this experience? What do we owe them? I believe that we owe them healing.”
Legislative protection will not accomplish true healing, but as statues continue to expand and evolve, it is a solid start.
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