A state lawmaker turned up the heat on political leaders Monday, challenging the governor and speaker of the House to ban nondisclosure agreements that prohibit women from speaking about sexual harassment cases.
The call by Senator Diana DiZoglio, a Methuen Democrat, came as two former Fox News hosts who won landmark sexual harassment settlements brought their national campaign to end nondisclosure agreements to Boston.
“This is the next fight in the #MeToo movement. We’re so close to making real change and progress and taking this issue out of silence is one of the biggest barriers still before us,” said Gretchen Carlson, the Fox host who first sued former chairman and CEO Roger Ailes for sexual harassment.
Carlson and former Fox colleague Julie Roginsky formed a nonprofit called Lift Our Voices to end the use of mandatory nondisclosure agreements, confidentiality provisions, and forced arbitration clauses in cases of sexual misconduct.
Both joined DiZoglio, who is proposing a bill that would prevent the use of nondisclosure agreements in taxpayer-funded settlements involving sexual harassment. It would also bar their use in the private sector but allow for a victim who wants to protect her own privacy to initiate one.
“Victims would still be able to settle with their employer but that employer — for example, the governor or the speaker of the House — would no longer be able to use our hard-earned tax dollars to legally muzzle their employees about abusive experiences,” DiZoglio said at a State House press conference.
The use of nondisclosure agreements has been a divisive subject on Beacon Hill and nationally, since the #MeToo movement revealed that some of the men accused of the most egregious serial sexual misconduct had been at it for years, while their companies muzzled the women leaving the jobs from alerting other potential victims.
At least a half-dozen states, including New Jersey, have banned confidentiality agreements in sexual harassment cases in recent years.
“No one should be penalized for having a voice,” said Carlson. “Because buying silence instead of stopping harassment is immoral and unjust.”
Last year, the House and Senate split on their approaches to dealing with sexual harassment settlements in their chambers. The Senate changed its rules to forbid nondisclosure agreements among its employees.
“The Senate clearly believes that there are other ways to protect victims," Senate President Karen E. Spilka said Monday. "We ban the use of NDAs.”
The House allowed such agreements to continue if requested by the employee. Governor Charlie Baker said that his administration likewise allows nondisclosures only if requested by the victim, but DiZoglio argued that he has not substantiated that.
“Our policy is to only use a nondisclosure if the victim asks for one," Baker told reporters Monday. "We think that’s an appropriate policy, and it’s one that’s endorsed by many women’s organizations.”
Before she was elected to the House and then the Senate, DiZoglio was a House staff member who was fired by the Republican legislator she worked for in 2011, signing a nondisclosure agreement from the House and receiving six weeks’ severance.
She broke that agreement and began speaking about her experience in 2018. According to the speaker’s office, that was the first time Speaker Robert DeLeo learned it had to do with sexual harassment.
Still, DiZoglio accused DeLeo of having lied to House members by insisting that the House had not imposed nondisclosure agreements on victims of sexual harassment and having exploited victims by maintaining that he was preserving nondisclosure agreements to protect them.
“In demanding action today, we’re not positioning any legislator to take a vote against the speaker, to go against the governor,” DiZoglio said.
She went on to address her peers in the House: “You are being positioned by your speaker to take a vote against victims, workers’ rights, transparency, accountability and maybe even your own conscience. This is your opportunity to do the right thing and to get on the right side of history.”
DeLeo told reporters Monday that the House’s nondisclosure policy evolved after leaders consulted with local and national women’s advocacy groups.
“I want to make extremely clear that the decision that we had made relative to nondisclosure was not made in a vacuum,” he said. "So that is the policy that we went by – after listening to the most important people of all, the victims of violence or abuse or anything of that sort.”
Others advocating for the bill in a Beacon Hill press conference on Monday said that victims can still be protected even if nondisclosure agreements are eradicated.
“Some people may claim nondisclosure agreements protect the victim. We are here to tell you the use of nondisclosure agreements only protects alleged perpetrators and further marginalizes victims,” said Representative Alyson M. Sullivan, an Abington Republican.
Mitchell Garabedian, the attorney known for his work with victims of sexual abuse by Catholic priests, said that at the very least, the law should allow victims to revoke their NDA if they later decide to speak out.
“It’s not that complicated. Whose side are we on?" said Garabedian. "Do we want to end sexual harassment? Do we want to end sexual abuse? Or do we want to perpetuate it?”
Carlson, who lost her job at Fox in 2016, received a $20 million settlement and an apology from 21st Century Fox after her suit. By speaking out, she spurred a wave of complaints against men at Fox News more than a year before the #MeToo movement began. Ailes was forced out, as was Fox News host Bill O’Reilly.
The two men also walked away with settlements — a combined $65 million. The women they allegedly harassed shared $50 million.
“Had I known what I know now – that my complaint would help ignite such a profound cultural shift — I would have also fought to never sign that awful NDA,” Carlson said.
Though Carlson’s real-life drama is now on the big screen — she’s portrayed by Nicole Kidman in “Bombshell" — she is unable to discuss the experiences that led to her suit.
“My NDA means I’m legally prohibited from discussing what really happened to me,” Carlson said. “It means I can’t consult with filmmakers, writers, journalists, or anyone else telling my own personal story, whether it’s about the depiction of me, my family, or the events themselves.”
She has asked Fox to release her from the nondisclosure agreement. But she noted that, for many women, a settlement does not just mean quiet compensation for a humiliating experience,
“When women are paid in settlements, they’re not just paid to shut up,” she said. “They’re also paid for their career, because they’ll never work again.”