Wednesday night’s debate was, by and large, a trainwreck for former New York City Mayor Michael Bloomberg, with his 2020 Democratic presidential opponents leaving no stone unturned in launching attacks at him — taking turns highlighting everything from his racist policies as mayor to his recent transphobic comments to his alleged history of sexism and misogyny at his media company.
Central to the latter is Bloomberg and his company’s use of nondisclosure agreements to silence women who made sexual harassment and gender discrimination claims, the subject of one of the night’s most fiery exchanges.
When Sen. Elizabeth Warren (D-Mass.) asked if Bloomberg would release the women from the NDAs, the former mayor repeatedly hemmed and hawed before ultimately declining to do so.
Along the way, he defended the use of nondisclosure agreements by implying they were mutually beneficial.
“There’s agreements between two parties that wanted to keep it quiet, and that’s up to them. They signed those agreements, and we’ll live with it,” Bloomberg said.
After Warren again pressed him on whether he would allow the women to break their NDAs, Bloomberg again claimed that “they decided, when they made an agreement, they wanted to keep it quiet for everybody’s interests.”
However, as the revelations of the Me Too movement have demonstrated time and time again, the use of these agreements is often mutual in name only. In practice, NDAs end up reinforcing the power differential between the individual and the company, the same power differential that enables the alleged misconduct.
It’s common for companies to require employees to sign NDAs to prevent them from leaking trade secrets, such as pending deals, projects or research.
But increasingly, employers across many industries – including tech, entertainment, media and politics — have also used NDAs to keep employees silent about workplace sexual misconduct, effectively sweeping it under the rug. Companies often pair NDAs with other onerous legal tools, like secret monetary settlements to buy accusers’ silence and forced arbitration clauses that compel accusers to settle their claims privately instead of taking them to court.
These NDAs often leave accusers with no choice but to sign them, especially when the accuser is a young, low-level employee who’s up against a giant company and facing potential career retribution.
One of the most extreme offenders was former movie mogul and accused serial sexual abuser Harvey Weinstein, whose army of lawyers forced several of his more than 80 accusers into signing byzantine agreements with many strings attached.
Some of them, including former Weinstein employees Zelda Perkins and Rowena Chiu, have become advocates for curtailing the use of NDAs in cases involving sexual misconduct in the workplace.
“There’s something not quite right about a situation where an entire army of wealthy white men had compelled two young women to sign a 30-page agreement that we couldn’t quite understand,” Chiu told HuffPost earlier this month, comparing her NDA to “a Houdini-style rope.” “They knew how the law worked, and they just let us go straight into signing this agreement that was massively imbalanced on his side. They pretended we had benefits when in reality we didn’t.”
NDAs also helped cover up the sexual misconduct allegations involving former NBC “Today” anchor Matt Lauer and other officials at NBC, as well as those involving Fox News founder Roger Ailes and former host Bill O’Reilly.
“Very few women ‘choose’ to be forever silenced — I can’t believe he thought he could get away with that answer,” former Fox News host Gretchen Carlson, who formed an organization to fight to restrict the use of NDAs in cases of workplace sexual misconduct, said in a tweet Thursday regarding Bloomberg’s answer on the debate stage from the night before.
Carlson still cannot speak about the details of her sexual harassment lawsuit against Ailes because she is bound by a nondisclosure agreement.
On Wednesday, Warren also drew parallels between Bloomberg and the man the candidates onstage hope to defeat: President Donald Trump, who has also used NDAs to silence women, including Alva Johnson, a 2016 campaign staffer who accused him of forcibly kissing her, and Stormy Daniels and Karen McDougal, who alleged that Trump had extramarital affairs with them and received hush money from Trump’s then-attorney Michael Cohen to prevent them from speaking out in 2016.
Some advocates of the use of NDAs in sexual harassment cases — among them, the women’s rights lawyer Gloria Allred — say NDAs can be helpful because they give the accusers anonymity so they aren’t associated with the incidents forever, especially in the age of social media and the internet.
However, by releasing someone from the agreement, it at least gives them the option to speak out and tell their side of the story if they choose — giving them back their agency and power.
Need help? Visit RAINN’s National Sexual Assault Online Hotline or the National Sexual Violence Resource Center’s website.