In the midst of increased public scrutiny concerning allegations of a toxic work environment, NBC has announced that it will not seek to enforce any non-disclosure agreements (“NDA”) against any former or current NBC employee who wishes to speak openly about incidents of sexual harassment. The announcement comes in response to recent reports that several former NBC employees are unwilling to speak publicly about their experiences of sexual harassment at NBC in fear that they would be breaching the NDA’s if they did so. While NBC maintains that the NDA agreements never prohibited employees from speaking out against sexual harassment, at least a few employees have been reported to believe differently. The announcement should resolve any confusion of whether former or current NBC employees’ can speak freely about the NBC work environment. It also serves as a reminder to all employers of the significant legal risks associated with attempting to use NDA’s to keep employees silent about issues of workplace discrimination.
The #Metoo movement has encouraged many victims of sexual harassment to openly and publicly discuss their experiences in working in a hostile work environment. For far too long, victims of sexual harassment have remained silent and not hold the perpetrators responsible for the grave harms caused by their actions. Many times, the decision to stay silent is voluntary. Victims would rather try to ignore what happened for fear that they will not be believed, their employer will not take any action, or even worse, suffer retaliation. In fact, according to the report of the 2016 Task Force on the Study of Harassment in the Workplace, the least common response of a victim of harassment is to take some form of formal action, whether it be report the harassment internally or file a formal legal lawsuit. In fact, approximately 75% of victims of sexual harassment will never talk to management, HR or a union representative about an incident of workplace sexual harassment.
Other victims of sexual harassment cannot speak freely about their experiences because they signed a written NDA contract with their former or current employer. An NDA prohibiting an employee from discussing workplace sexual harassment is typically executed either when an employee starts his or her employment, or when the employment is separated. When starting employment, many employers require the employee to sign employment agreements that include confidentiality of company trade secrets, proprietary information and other aspects of the employment that require confidentiality. Some employers attempt to use these provisions to restrain current or former employees from disclosing incidents of workplace sexual harassment and deem them “confidential” under the NDA provision. While these confidentiality provisions in employment agreements are in most situations unenforceable as against public policy, many employees feel restrained by the provision and remain afraid to breach it. Some employees are even afraid to speak to an employment attorney for advice and counsel concerning their rights under anti-discrimination laws.