Originally published at: https://boingboing.net/2019/12/13/gretchen-carlson-to-fox-relea.html
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I’m sorry she got harassed and that she can’t talk about it because of the NDA. No one deserves that, and I’m glad of the role she’s playing now in calling this kind of thing out and trying to change that. Given that she’s a well-known conservative pundit, she can bring this issue to the attention of people who would otherwise dismiss it.
I’m equally sorry for the role she played in promoting our current political environment that lionizes predatory men.
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Do NDA’s cover illegal activity?
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She’s absolutely right. However, the president that her former network helped put in place and still enables uses NDAs heavily. I can’t imagine that the he or his party will give them up without a fight.
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“If you don’t like your job, just quit and find another one that doesn’t have NDAs.” /s
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I don’t know, as I’m not a lawyer, but we’re in the process of testing that now, I’d say. Ronan Farrow likely has some insight into that and has likely talked about it in his round of recent interviews.
Indisputably, it does work as a silencing tactic with regards to rape and harassment (and others crimes, I’d guess). Not only did Fox use it, so did Weinstein and other predators. It scares people into silence, because they know if they talk, it will not only ruin their careers and make them fodder for the tabloids, but it means that a more powerful person will hit you with a lawsuit, and most people do not want to deal with that, especially because it means their names will get dragged through the mud, their sexual lives will be used against them, they will never work again, etc. It’s almost immaterial whether or not it’s legal to use an NDA to cover up a crime, because that’s precisely what has been happening time and again, to shield powerful people from accountability.
[ETA] The law works differently for the powerful than it does for us mere mortals. Until we fix this, we’re going to continue to have these kind of outcomes.
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They cover exactly as much as the lawyers at the company think they can get away with. They are usually worded extremely broadly because the employee doesn’t have much power to fight them when joining the company, especially for a competitive position like News Anchor.
It’s entirely possible that it wouldn’t stand up in court, but you won’t know that until you’re out hundreds of thousands of dollars in legal fees and there’s always the possibility that you lose and face whatever the consequences are for breaking the NDA (probably thousands of dollars more). Even if you win you’re probably out those legal fees unless the court finds the company lawyers to be way out of line.
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“Buying silence instead of stopping harassment is immoral and unjust”
She does understand she’s saying this to Fox News, right? “Immoral and unjust” are core values there.
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Isn’t that on the FOX News letterhead?
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If a chemical company developed a process that makes a particular formula better, cheaper, etc. but, part of the process is illegal does an NDA cover that? Hmmm
And for that very reason, this is not:
It’s just stupid and self-serving. Oh, Gretchen Carlson is so great because she’s taking a stand against Fox News!
Both a day late and a dollar short.
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Every once in a while you see a politically conservative woman or minority member or LGBT person who wakes up to realize that the Republican party and associated apparatus like Fox News are not their friends.
Here’s hoping this is one of those times.
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They know it is amoral and unjust.
They know. We know.
Now what ?
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As in most things, good principles are sometimes championed by terrible people by virtue of their own self-interest. Gretchen Carlson can be both right about this issue (or at least mostly right) and still be a garbage person who has done far more harm than good in her life.
There’s not an easy answer to that, but generally speaking an NDA can’t prevent someone from testifying about the criminal conduct and it’s unenforceable if its part of the ongoing criminal conduct. But the question of whether of not the underlying conduct is “criminal” usually hasn’t been determined by a court of law so the person breaking the NDA is rolling the dice.
It’s probably worth making a distinction between NDAs people sign as part of their employment and NDAs people sign as part of a settlement. In the latter, the person’s silence is part (sometimes a big part) of what is being purchased. Carlson’s point that "Buying silence instead of stopping harassment is immoral and unjust” is true as far as it goes, but there is a bit of missing context there that she sold her silence as part of her settlement for $20m.
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I think the situation often goes like this:
Person A: Person B harassed/assaulted me.
Person B: No I didn’t and if I did it certainly wasn’t illegal.
Corporate lawyers: Golly this is a tough one, how about this—if Person A agrees not to accuse Person B of wrongdoing (especially criminal wrongdoing) then she can have this settlement money instead of having to fight her case in court and have her reputation dragged through the mud. Also, she can’t ever talk about it.
Person A: Ugh fine
Corporate lawyers: Good to know that we’re all in agreement there were no crimes.
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I’m not sure. There are whistleblower protection laws, and I have a hard time believing that an NDA could legally prevent someone from testifying court if called as a witness. But practically they are very effective at stopping people from talking to lawyers, prosecutors, and so on as a necessary leadup to a court case.
As a completely unrelated but similar fuckery see the Goodyear G159 saga. They sold tires to RV makers – allegedly despite internal testing showing they were unsuitable for that application as they failed during extended highway driving. They were implicated in dozens of crashes including at least 10 fatalities as of 2002 when they took them off the market but never recalled them. They implemented secret settlements with many of the victims that included NDAs that claimed to prevent them from reporting the crashes to NHTSA. This likely prevented a safety recall that would have prevented many crashes over the following years. Whether the NDA actually legally covered that or not, it effectively prevented the victims from even contacting the safety agency.
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She had a choice:
A) Sign the NDA, keep quiet, and receive a $20M settlement.
B) Not sign the NDA, speak publicly, and roll the dice on a judgement in civil court.
She made the choice for option A. Sorry you can’t talk, but that was the deal you opted for.
I’m not surprised someone like Gretchen Carlson opted for money over values… she was doing that her whole professional life.
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forced arbitration and NDAs can’t block a criminal investigation, onlynmost civil matters. So do we need to make harassment a criminal matter? It seems foolish to trust corporations to do the right thing.
Will they listen though? The American Right seem more interested in abusers and victims who don’t resist. I hope I’m wrong, but I’d have guessed she’s persona non grata among them.
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Yes, in the sense that you can’t afford the bills for the lawsuit that’ll happen whether or not you were disclosing illegal activity.
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