Workplace NDAs and Forced Arbitration Silence Older Employees

We are all too familiar with stories of workplace toxicity and abuse, from sexual assault and harassment to racism, misogyny, and LGBTQ+ discrimination. These issues persist in the public consciousness. Many people are prevented from telling their stories because of silencing mechanisms that exist in the workplace, such as nondisclosure agreements and forced arbitration.

Much less talked about, but just as pernicious, is age discrimination. Older workers bring decades of experience and knowledge to their workplace, making their organizations more productive. They also train and teach colleagues, and mentor younger employees still learning the ropes.

But too often, because of their age, older employees face various forms of discrimination, such as being let go because their employer can hire younger workers at a lower salary. When looking for a job, they might meet or exceed the requisite qualifications, but aren’t hired for vague reasons that imply the issue might be their age—their “lack of energy,” for instance. Or perhaps they’re forced out because they have aged out, or an employer wants a younger-looking person to represent the company.

The examples are endless, and we are all familiar with them, having witnessed or experienced such incidents ourselves or heard about them from colleagues, family, and friends. But what’s just as bad as the discrimination is the stories we aren’t allowed to hear, which are myriad.

That’s because silencing mechanisms like nondisclosure agreements and forced arbitration exist in the workplace to cover up rampant workplace toxicity. Just last year, that finally began to change when we worked with the White House and members of Congress on both sides of the aisle to pass two landmark labor laws that allow survivors of workplace sexual misconduct to bring their claims to light.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act allows survivors of sexual abuse to sue in open court, rather than be forced into the secret chamber of arbitration. And the Speak Out Act prohibits pre-dispute NDAs for sexual assault and harassment, which allow survivors to openly discuss their experiences with colleagues, friends, and loved ones.

But despite the progress we’ve made for survivors of sexual misconduct, our fight for the rights of survivors is far from over. Workplace silencing mechanisms are still legal for all other forms of discrimination.

That is why we joined members of Congress on both sides of the aisle this month to introduce the Protecting Older Americans Act. Our bill would ban forced arbitration for age discrimination and allow survivors to file cases in open court, rather than in the secret chamber of arbitration.

It turns out that Americans across the partisan divide are hungry for solutions that protect older workers from discrimination in the workplace. A Morning Consult poll that our organization, Lift Our Voices, commissioned this month found that 71% of all respondents believe those who accuse their employers of age discrimination should be able to sue in open court, rather than go through the secretive process of forced arbitration. This issue has broad support across ages, political ideologies, and geographic regions.

That is because the Protecting Older Americans Act gives survivors freedom they are currently denied to choose how and where their complaints will be heard. Nobody will be obligated to speak out, but older workers will have the critical legal right to have their cases heard in public, if they choose to do so. In this way, we will shine a light on the illegal discrimination taking place in some workplaces and put a stop to it, once and for all.

It’s long past time to recognize the contributions of older workers and protect their rights. We call on members of Congress from both parties to rally around this issue, just as they did for survivors of sexual misconduct, and help make our workplaces fairer and safer for older Americans.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Gretchen Carlson is a journalist, bestselling author, and advocate for women’s rights whose bold actions against workplace harassment at Fox News helped pave the way for the global #MeToo movement.

Julie Roginsky is a political consultant and advocate of women’s rights, who sued Fox News for sexual harassment and retaliation.

They are co-founders of nonprofit Lift Our Voices, dedicated to eliminating forced arbitration and NDAs for toxic workplace issues.

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