Advocacy Efforts on NDAs Should Not be Limited to Sexual Abuse

The movement to stop employers from silencing workers needs to be intersectional

A recent excellent interview with Ifeoma Ozoma in the Financial Times stood out to me for how it touched on intersectionality in the efforts to curb NDAs.

Not familiar with the concept of intersectionality? The term was coined by Kimberlé Crenshaw, professor at UCLA School of Law and Columbia Law School. You can watch her 2016 talk here. And here is a good definition:

The concept of intersectionality describes the ways in which systems of inequality based on gender, race, ethnicity, sexual orientation, gender identity, disability, class and other forms of discrimination “intersect” to create unique dynamics and effects.

In 2020, Ifeoma Ozoma famously broke her NDA (quite publicly via Twitter) with her former employer, Pinterest, to expose the company’s racial discrimination against herself and her Black colleagues.  

She then became a vocal advocate for changing the laws related to NDAs and similar silencing mechanisms. Her bravery and advocacy are incredibly inspiring.

What struck me about the interview is how she describes the process of changing the law in California, and how it took more than one fight to get it right:

In 2017/2018 after the Harvey Weinstein revelations [about his sexual abuse of women] and the beginning of the #MeToo movement, there was a lot of momentum behind changing the use of non-disclosure agreements in California, because so many of the celebrities and other women he had assaulted live in California and work in Hollywood. So California passed a bill that addresses the use of non-disclosure agreements.

But it was not intersectional — it was driven mostly by the predominantly white women who were involved most visibly in the #MeToo movement. If you remember, at that time, there was a lot talked about how Tarana Burke had actually coined the phrase but the people who were front and center were white women. The same thing happened legislatively. [California] passed this bill that focused on sexual harassment, when we know there are a number of other types of workplace harassment and abuse that take place. It didn’t cover race issues; it didn’t cover age discrimination, or many of the other categories that California law sees as clear forms of identity-based discrimination.

Then Ozoma led the successful effort to expand California’s law to include not only other forms of discrimination but also any “unlawful acts” or “or any other conduct” that the employee has “reason to believe is unlawful.” The law applies to all types of employment contracts and settlement agreements. That expanded law took effect in January of this year.

This all sounds very similar to what is happening now at the federal level.

As I wrote about previously, a federal bill has been introduced to restrict the use of NDAs but only for agreements signed at the start of employment, and only in cases of sexual harassment and abuse. This is similar to the recently enacted federal bill aimed at stopping employers from requiring arbitration to settle disputes, but only in cases of sexual harassment and abuse.  

Both bills are being championed by former Fox News anchors Gretchen Carlson and Julie Roginsky, who both sued Fox News ex-chairman Roger Ailes for sexual harassment. Carlson was unable to sue, however, due to an arbitration clause in her contract, while Roginsky is still silenced because of an NDA.

While it’s laudable that these two women are turning their experiences into an advocacy campaign, legislation based on personal experiences alone is rarely good public policy for everyone. And while I am a believer in incrementalism, which is when laws change one step at a time, it can often be harder after one law gets passed to try again. This is especially true at the federal level, where lawmakers have very short attention spans.

It would be far better for the white women who have been abused in one way to team up with all women to make for a stronger alliance and address all workplace abuses.

Otherwise, the campaign looks like white women advocating only for themselves. And we have seen bad outcomes historically, as when the women’s suffrage movement (led by white women) threw Black women under the bus. As a result, Black people had to wait until 1965 for the Voting Rights Act, which is now being eroded.

From the perspective of intersectionality, it’s not enough to just address one form of oppression such as sexual harassment, when so many women are experiencing other forms of abuse at the same time.

When it comes to stopping workers from being silenced by their employers, all forms of oppression and abuses are connected, and we have to address them together.

Moreover, many white women are still part of the problem when it comes to discrimination and other abuses in the workplace, so it behooves us to take responsibility for ensuring equality for everybody.