The Black Lives Matters protests have now spread around the globe for nearly two weeks, setting off a string of resignations. In newsrooms, at fashion companies, magazines, and corporations across the country, many former and current employees, previously bound by nondisclosure agreements or afraid of speaking up to those in power, have begun disclosing racist practices, pay disparities, and wage gaps, exposing a systemic disaster made up of hypocritical environments at companies built on noble premises.
What started with outrage and anger over horrific police brutality and unprecedented unemployment rates for minority communities has radiated outward to the working world in a reckoning akin to the explosiveness of #MeToo, shedding chief executives and lawsuits in its wake.
Of course, we already have laws that protect people against racial discrimination. Discrimination in hiring, firing, pay, job assignments, promotions, layoff, training, or benefits is illegal. It is unlawful to harass a person based on race or color. Moreover, an employment policy or practice can be illegal if it has a negative impact on the employment of people of a particular race.
So how did these laws manage to fail the people coming forward now so miserably?
The failure lays in, as all too common with racist practices, the balance of power. In the United States, employment is at-will in every state except for Montana. This means that an employer can fire an employee for any reason, so long as the employee is not able to prove that they were fired for their race, color, religion, or other protected class, that they were retaliated against, or that their employer breached their contract.
Even this week’s landmark Supreme Court decision that includes gay and transgender workers under the umbrella of protection from gender-based workplace discrimination could prove challenging to enforce. Many aspects of discrimination are not so black and white, and in their subtler forms can be difficult to prove. A racial or homophobic slur is pretty clear cut, but often there isn’t one smoking gun that enables an employee to cleanly raise a concern, speak up, or win a legal case.
In order to prove your work environment is discriminatory, you have to retain evidence that shows a trend. In many employment situations, however, you risk violating human resources policies by sending yourself emails, taking screenshots of Slack, or downloading documents. Recording conversations that demonstrate a discriminatory environment could also bolster your case. But in some states, like California, you cannot record someone else without their consent.
Meanwhile, as anyone who has been discriminated against knows, the paper cuts add up. Former Refinery29 writer Khalea Underwood described in a series of social media posts that she had such bad anxiety attacks while working for the media company, she was forced to check herself into the hospital over fears she was having a heart attack.
Nondisclosure agreements have become par for the course in any employee contract or severance agreement.”
Additionally, nondisclosure agreements have become par for the course in any employee contract or severance agreement. Some data has shown that over one-third of the U.S. workforce is bound by an NDA.
While there is good reason to protect an employer’s trade secrets, there is little creativity in these contracts to allow for whistleblowing or speaking up in the face of toxicity or hostility. Roughly 20% of Americans in the workforce have a non-compete agreement, and 40% have signed a noncompete at some point in their careers. For most employees, breaking a nondisclosure agreement is simply not worth it, if they risk losing money or inviting a scary lawsuit from their former employer.
Noncompetes also block people from moving on to better positions in their specialized field, preventing workers from extricating themselves from a toxic relationship with their employer or manager. Noncompetes exacerbate power imbalances—as employers have much less motivation to ensure employees are treated well when those employees feel like they can’t change jobs. Antitrust expert Matt Stoller compares these kinds of clauses to “a legal regime verging on indentured servitude.”
When you are David in a David-versus-Goliath legal environment, your employer can rack up legal fees in unimaginable ways, amplifying differences in class and race. In most cases, employers have the resources to suppress or manipulate their employee’s arguments, undermining, gaslighting, and discounting complaints.
All of these policies and practices, designed to protect businesses, have little regard for the employee experience, regardless of how many perks the employer offers or what “Best Place to Work” list they make. And, since human resources, no matter how benevolent they are, is constructed to mitigate risk for the employer, there is little recourse for a person pursuing a discrimination claim but to spend exorbitant dollar amounts on legal fees, take a severance package with a gag order, or leave silently, usually jumping quickly to the next thing to make the next month’s rent.
The entire process is psychologically exhausting for anyone who is up against it.
There have been incremental legislative changes as it relates to employment law and discrimination practices against all protected classes. When Chelsey Glasson spoke up about pregnancy discrimination at Google, she received obstinance from the company at every turn. She fought to pass a law in the Washington State Legislature that extended the period of time pregnant workers could file discrimination claims. But this was not without tremendous financial and emotional cost to Chelsey in driving that change, who spun up a GoFundMe to take in donations for her legal costs.
Furthermore, other countries have shown us that it is not impossible to find a new employment model that shows more respect for workers. In Europe, at-will employment does not exist, and workers can claim wrongful termination if they believe they have been treated unfairly. U.S. employees do not have those same protections.
The push and pull between employer and employee will always be a reality of the working world. But there are concrete changes we can make in corporate and public policy to ensure people are not silenced, mistreated, or discriminated against. Even small actions—like extending the timeline for someone to file a discrimination claim, or financially investing in employees on their way out—can speak volumes over empty words and unfulfilled posturing to fight discrimination.
Correction: A previous version of this article incorrectly stated that Glasson had filed a pregnancy discrimination lawsuit.
Ariella Steinhorn is the founder of Lioness, a storytelling platform that educates everyday people on connecting with the media. She previously cofounded workplace rights organization Simone, and led communications at Uber and subsidiaries of Ford Motor Company and WeWork.