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Victims of workplace sexual harassment want some types of NDAs to be banned

Former Fox News anchor Gretchen Carlson advocates for a bill limiting nondisclosure agreements, at the State Capitol on May 8, 2023.
Karen DeWitt
New York State Public Radio
Former Fox News anchor Gretchen Carlson advocates for a bill limiting nondisclosure agreements, at the State Capitol on May 8, 2023.

Survivors of sexual harassment want to see a bill passed in the final weeks of the New York state legislative session that would ban most forms of nondisclosure agreements.

The survivors, including several women who worked at Fox News, said the current law has loopholes that protect sexual predators.

Former Fox News anchor Gretchen Carlson recently came to the Capitol, along with other survivors of sexual harassment.

Carlson successfully sued the former head of Fox News, the late Roger Ailes, for harassment and retaliation. But she had to sign a nondisclosure agreement as part of a settlement. Even though the incident has been reported widely in the media, and was even the subject of a Hollywood movie, she’s not allowed to talk about it.

“My story may be public, but I have been silenced by an NDA prohibiting me from ever disclosing what really happened,” Carlson said.

She said the NDAs have become “epidemic” in the American workplace, with one-third of new employees required to sign one before they begin their first day of work. Carlson, who has since co-founded the survivors’ advocacy group Lift Our Voices, said the NDAs protect sexual predators.

“The bill we're advocating for today would eliminate NDAs, not just for harassment and assault, but for all toxic workplace issues, including race, gender, sexual identity, age and disability discrimination,” Carlson said. “This bill puts the power back in the hands of the survivors.”

The measure, called the Stop Silencing Survivors Act, comes at a time when two members of the State Assembly, Pat Burke and Juan Ardila, have been accused of harassment. Gov. Kathy Hochul recently severed ties with a top political adviser, Adam Sullivan, over allegations that he fostered a toxic work environment and was demeaning to younger women on the governor’s staff.

In 2018, New York state reformed laws dealing with sexual harassment in the workplace, including NDAs. But advocates, including the Sexual Harassment Working Group, made up of current and former legislative staffers who say they were sexually harassed, said the law is flawed.

Employee rights attorney Margaret McIntyre said victims are no longer required to sign NDAs unless they state that it is their preference to enter into one. But she said that change has not stopped employers from pressuring survivors to agree.

“The law doesn’t work. Because still today, employers say, ‘Well, if you want to settle your case, you will prefer to keep things confidential,’” McIntyre said. “My clients, whether they like it or not, if they want to settle their cases, they have to promise to keep silent.”

The Senate sponsor of the bill, Andrew Gounardes, said the measure would restore NDAs to their original purpose – to allow an employer to protect trade secrets and other proprietary information. That would still be allowed. And victims who want privacy would still be able to choose to keep their identities and the circumstances around the complaint secret.

He said under the current rules, though, NDAs are misused.

“What we’re talking about here is banning a bribe,” Gounardes said. “You are bribing someone to keep their mouth shut about the harm that they have done to you.”

The bill is currently in the Senate and Assembly’s judiciary committees.

Karen DeWitt is Capitol Bureau chief for the New York Public News Network, composed of a dozen newsrooms across the state. She has covered state government and politics for the network since 1990.