Silenced by NDAs, these former Fox News anchors are advocating for safer workplaces

In 2016, former Fox News anchor Gretchen Carlson sued the network's CEO, Roger Ailes, for sexual harassment in what was one of the largest public legal battles of its kind. It also set in motion an even larger and more purposeful movement in its aftermath. 

"When I jumped off the cliff I had absolutely no idea what was going to happen to me, nor did anyone else — only that it was going to be really bad," Carlson says. "It really was all of the survivors out there who became my safety net. And at the time, I didn't have a clue about how pervasive the problem was, but they really lifted me up during the dark days." 

Ten months later, in April 2017, former Fox News host and commentator Julie Roginsky also filed a lawsuit against Ailes, Fox News and the network's producer Bill Shine, alleging sexual harassment and retaliation. After Carlson and Roginsky settled their lawsuits in 2016 and 2017, respectively, the two women then co-founded Lift Our Voices, a non-profit organization that advocates for workers' rights, in 2019.

Roginsky, who has since dedicated her entire career to advocacy with the non-profit, says that despite the physical and emotional toll of her own legal battle, she knew that there was still work to be done. 

"Nothing is darker than watching a career that's always been on the ascendant stall because of something that was done to you, and not because of something you've done yourself," Roginksy says. "There's one of two ways you can go: You could either pity yourself, or you can make sure that this doesn't happen to anybody else, and turn something bad into something positive."

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While emboldened to protect other workers through their efforts and personal stories, Carlson and Roginsky can still only say so much: Silenced by restrictive non-disclosure agreements of their own, which prohibits them from talking about the kind of harassment they endured, the women are two of thousands of employees who have signed away their rights when signing on for a job.  

A workforce silenced

Non-disclosure agreements (NDAs) are legally enforceable contracts that create a confidential relationship between a person who has sensitive information, in many cases between an employee and their employer, for a set number of years or even indefinitely. Under forced arbitration clauses, employees are forced to give up their right to go to court if they are harmed by a company. Instead, they would have to resolve a dispute with a company through arbitration, which can limit an employees' ability to appeal a decision. 

Forty-five percent of workers currently report being subject to an NDA, according to a recent survey from Penn State University in partnership with Lift Our Voices. Another 39% report being subject to a mandatory arbitration clause. And while Carlson and Roginsky's cases made headline news, most employees lack the resources and power to fight. Lift Our Voices aims to advocate for more workplace transparency and provide resources such as legal assistance, mental health support and crisis services as well education on employee rights.

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While NDAs and arbitration clauses are typically put in place to keep a company's trade secrets safe, Carlson and Roginsky saw the dark side of these agreements first-hand. Now they're fighting the ways NDAs potentially silence employees and seal away human rights violations, like race discrimination, age discrimination, harassment and assault. 

"The millions of American workers who are signing these either on the first day of work [or] throughout their employment have no clue what they're signing," Carlson says. "Because if you look at the language of an NDA, that's incredibly expansive. It doesn't say that if something horrible happens to you and you're discriminated against, you can never voice anything about it for the rest of your life." 

NDAs and arbitration clauses are often made as a condition to accessing workplace perks and benefits, like stock options, severance packages, a raise or a promotion. That's what makes them still so prevalent — and dangerous, Carlson says.

"People don't care about these things until something happens to them, [and by then] it's too late," she says. "When you go to HR thinking that's the right place to go and that they're going to actually care about you and look out for your interests ahead of the company's, if you have an NDA or a forced arbitration clause, immediately that clicks in and there's no turning back. The genie is out of the bottle."

Contracts come with a cost

Fighting NDAs, which are typically paired with forced arbitration clauses, tend to be far less beneficial to employees than if they'd been allowed to take companies to court instead of being forced to settle through arbitration. For example, according to a second survey from Penn State and Lift Our Voices that collected data from 479 plaintiff attorneys, employee win rates are about 36% higher in litigation (60%) than in arbitration (44%). Litigation also offers substantially higher financial outcomes in court, with litigation awards averaging at around $636,087 compared to arbitration awards averaging $389,859.

Read more: The high financial price paid by victims of sexual harassment

The issue is further exacerbated by the fact that there are notable disparities for minority groups. Asian and Black employees are subjected the most to NDAs, with 53% and 45% respectively having signed one, compared to 42% of white employees and 40% of Hispanic employees. NDAs are also more common among women, at 47% compared to 43% of men. Mandatory arbitration clauses, however, are more standardized. 

If an employee is driven out of their job by a toxic work situation, or even leaves on their own accord, the NDA could make it more difficult to find a new role, due to their legal ramifications. For example, in future job interviews, employees who signed NDAs won't be able to address questions on why they left their company or explain career gaps, even if it makes them look like they're at fault. 

The violation of an NDA can result in civil and criminal penalties, the cost of litigation and the loss of an employee's reputation and credibility in their field. And that's without taking into account the emotional and psychological damages. 

"Imagine knowing that somebody's going to do something awful to your co-worker because it's been done to you, but you can't talk about it," Roginksy says. "[NDAs] prevent you from discussing it with your husband, your wife, your boyfriend, your girlfriend, your mom, your dad, your kids, even your therapist. They're so broad that you can't talk about it with anybody at any time whatsoever, in perpetuity." 

Making workplaces safer and more transparent

Despite having won their respective lawsuits and receiving public apologies, as well as large settlements from the network, Carlson and Roginsky themselves are still bound by their NDAs to Fox News to this day. 

"Neither of us can talk about [our stories], even though everybody else feels like they can talk about our stories and that's a shame," Roginsky says. "But what we are committed to is making sure that this doesn't happen to anybody else."

Read more: How to reign in workplace harassment before employees quit

So far, Carlson and Roginsky's advocacy work has has led to the passing of two federal laws in 2022 — the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act and the Speak Out Act. Lift Our Voices also recently rolled out a "Where You Work Index," which grades Russell 3000 companies on their use of NDAs and forced arbitration clauses in employment contracts. The effort aims to create more transparency around what the culture is really like at a company. 

"You have all of these best places to work lists," Roginsky says. "But the very same companies that were making this very big push publicly to look like they were inclusive are actually driving people out of their own companies by silencing them. If you don't allow your workers to say what they want to say about what the workplace is like by threatening them with financial ruin for violating an NDA, then chances are you're probably not a great company." 

This level of transparency requires a group effort, and one employees and HR managers alike are interested in investing in: In fact, 76% of all human resource officers want more transparency, according to a recent report from Deloitte. However, just 52% are actively doing anything about it. 

"Our message is to come and join us in actually trying to become transparent," Carlson says. "You are spending millions of dollars every year to cover stuff up; imagine if you invested that money in actually trying to become transparent. We will help you get on the right side of history." 

Coming forward both as a current or former employee is not only a deeply personal decision, but one that takes a lot of courage and support. Carlson and Roginsky know that while not every victim they reach will take the next step, just being able to help them feel less alone throughout the process is enough. 

"On my deathbed, I will not think of all the politicians I've helped to elect and all the times that I've been on TV," Roginsky says. "But I will think about this, because this is a legacy that will outlive, hopefully, anything else we've ever done."