The Washington PostDemocracy Dies in Darkness

An infrastructure of silence

Film producer Harvey Weinstein during a photo call in Cannes, France, in 2015 (Valery Hache/AFP/Getty Images)

For a brief period last week, there was a Google spreadsheet populated with the names of people labeled “s—-y media men” and a description of each man’s alleged history of workplace sexual harassment, creepy, predatory and outright illegal behavior toward women.

The list, unconfirmed and without comment from the accused, was growing — a crowdsourced warning about men in the industry that, according to reporting on the mushrooming tale of movie mogul Harvey Weinstein’s behavior, was not just about the entertainment sphere. Some journalists, male and female, may have played a role in keeping Weinstein’s alleged secrets and shutting down accusers. They’ve collected compensation from book and movie deals and salacious info leaks. Here was a list that hinted that the problem with sexual harassment is not limited to the Weinstein operation but permeates the offices of people who might have written about Weinstein’s behavior.

As if to confirm all of the above, almost as quickly as the list went up, it was reportedly infiltrated by men included in the spreadsheet and shut down. Less than 48 hours: That’s how long the list was alive. In its place are any number of stories and tweets about the list, the rights, feelings and reputations of the listed, the propriety of creating such a list, what sort of behavior was sufficiently bad to warrant inclusion and the purported legal risk of even daring to read or share any remaining fragment. As America shakes it head at the growing list of outrageous things Weinstein has allegedly done to women in his professional orbit and paid them not to talk about, there’s still an entire infrastructure that sustains silence around harassment and discrimination in the nation’s workplaces.

“We see it time and time again,” said Alexander Colvin, a professor at Cornell University’s School of Industrial and Labor Relations (ILR) and a member of the university’s law school faculty who studies employee-employer dispute resolution and the impact of a country’s legal environment on workplaces. “People hear about stories like the Weinstein situation and then eventually start asking why did it take so long for the truth to come out? At least some part of the problem is anything that silences complaints.”

Colvin thinks there are several things — two of them legal instruments — that encourage or all but require silence.

The first is the much-talked-about nondisclosure agreement, better known as the NDA. The NDA is a contract that, once signed, bars the person who signed it from disclosing or discussing publicly the details of an incident, period of time or stretch of employment, an event, contact with a specific person or organization listed in the agreement. The NDA has been a part of most settlements in lawsuits against individuals and companies for so long that Colvin described it as “a pretty standard feature” for much of modern history.

But NDAs have become so common that many public figures — think names you know — and entire industries, including media, entertainment, politics and domestic help, now require them when people take jobs, sign on to projects or do other things that give an individual access to sensitive information. This is more like a preemptive NDA. The theory behind them is that they protect well-known people from sensitive-information leaks, extortion attempts and unfair competition schemes. Donald Trump has been a prolific user of the NDA.

NDAs can’t prevent a person from speaking to law enforcement officers, prosecutors or responding to a subpoena to offer information or testimony. But most people who have signed them appear not to know this, have been misled about the absolute nature of an NDA, are afraid to test its boundaries or are so emotionally worn down by the experience that they aren’t eager to talk. So, men at the center of multiple sexual-harassment allegations as well as reports of rape and sexual assault have used them again and again. This list includes the comedian and self-styled guide to better living Bill Cosby, musician R. Kelly, former Fox News Channel host Bill Bill O’Reilly, former presidential candidate Herman Cain and Weinstein.

The second instrument is less known but even more widespread: the binding arbitration agreement. These are contracts often signed by workers as they make their way through the small mountain of new-job paperwork. What they have agreed to is that any possible dispute with their employer will be resolved in front of an arbitrator, rather than a judge or jury –where what happens is generally a matter of public record. The binding arbitration agreement is not new, either. But, after the Supreme Court ruled in 1991 that employers can use arbitration agreements to deal with almost anything, they became a lot more common.

If NDAs are the documents being put in front of workers in close contact with the rich and famous, binding arbitration agreements create a similar wall around the every-man boss. More than 60 million American workers are covered by them and can’t take employer disputes to court, according to a September study by Colvin for the Economic Policy Institute. That number represents about 52 percent of the nation’s non-union workforce.

Arbitrators tend to find for employees only about 20 percent of the time, Colvin said. So employers like them for this reason and for the ability to limit legal costs. In fact, some companies have added a kind of enhancer to their binding arbitration agreements that makes it impossible for a group of employees who become aware of a pattern of behavior or illegal practice to join together and bring a class-action suit. Class-action waivers and Weinstein were even a topic of conversation when the U.S. Supreme Court heard arguments in a case earlier this month.

“The case really deals with some technical issues in labor law that boil down to the tools employees can use to address systemic discrimination and harassment,” Colvin said. “During oral arguments, they did mention Weinstein and class-action waivers. But my sense is that Chief Justice [John] Roberts said the number of workers who have signed them — 25 million — struck him as an argument not to disrupt all those contracts.”

Ellen Bravo is the co-director of Family Values @ Work, a nonprofit organization that advocates for universal, paid sick and family leave. Bravo is also co-author of “The 9 to 5 Guide to Combating Sexual Harassment.” Legal questions aside, when workers can’t bring group demands to an arbitrator or to court, individual employees are required to confront what are often significantly more powerful people alone, Bravo said. This robs the worker of both psychological and tactical in-office support.

The “harasser may be targeting many but you often don’t know who the others are,” Bravo said in an interview via email.

The only possible corrective in these situations is the use of arbiters who don’t allow what Bravo called “CYA settlements.” Those are settlements that emphasize silence but don’t require any rules or behavior changes from the company or accused harasser. Right now, too many of the systems that employers have in place to report sexual harassment or discrimination involve reporting alleged harassment or other kinds of wrongdoing directly to the person doing the harassing, Colvin said.

And in some workplaces, employees who speak up face unspoken anger, mistrust, demotions, transfers and poor performance reviews. That’s so true that worker complaints made to the Equal Employment Opportunity Commission about retaliation after informing a company of harassment or discrimination grew 94 percent between 2000 and 2016. That’s a rate of growth that topped the increase in complaints related to disability (77 percent), age (30 percent) race (12 percent) and sex (7 percent). Some of this can be attributed to the fact that other forms of discrimination can be harder to prove than the clear evidence that often accompanies retaliation, Colvin said. But retaliation is common.

Then there is the influence of the broader culture. It’s a culture that heard a presidential candidate say on tape that because he is famous he can grab women by the p—-, then put that candidate in office. Women are so routinely objectified that people who are inclined to abuse their power, who apparently enjoy humiliating others, come to realize how easy it is to play down their actions or vilify those who report them, Bravo said. And, if there are serious repercussions, such as the alleged abuser being pushed out of a job, that usually comes with a large payout, the proverbial golden parachute.

That’s the environment out of which the “s—-y media men” spreadsheet also came into being and quickly died.

“This is not the solution,” Bravo said. “But it embodies the concept of, ‘We will not keep silent.’ And that we should applaud.”