As we continue to evaluate the impacts of the Trump administration, we will find much to contend with as a society. Yet one outcome that we may have missed is the insidious normalization of workforce retaliation. What could be worse than a President of the United States normalizing employee discrimination and abuse? The fact that many “progressive” companies followed Mr. Trump’s example.
Over the course of four years, Mr. Trump’s administration chose employers over workers time and again by failing to enforce existing worker protection laws and taking action to strip workers’ rights. While the shift in the ways in which people can be treated by their employers has been ongoing, the Trump Administration put the cherry on top toward the end of 2020, issuing an Executive Order that openly threatened retaliation against government contractors that conduct diversity and inclusion training deemed “divisive.”
Let’s take a moment to define retaliation according to the law. It is the illegal act of “punishing job applicants or employees for asserting their rights to be free from employment discrimination.” Those rights — called “protected activity” — include filing complaints, cooperating in investigations, resisting sexual advances, and asking managers or coworkers about salary information, to name a few. Retaliation can take many forms from increased scrutiny to spreading false rumors and, of course, terminating an employee.
Inherently, retaliation in the workplace can only occur against those already-vulnerable employees that have raised an issue pertaining to their or a colleague’s rights. At the point that retaliation occurs, the severity — and, to a degree, the validity — of the initial complaint ceases to matter because retaliation is always illegal.
Further, naming retaliatory actions for what they are is more straightforward than naming discrimination or bias because there is almost always a specific event — like filing a complaint — before and after which an employee’s experience has demonstrably changed. That retaliation is such an easily-provable bellwether of discrimination suggests that those practicing it believe they are above the law, making it all the more troubling that Trump and his unlikely, silent ally — the pseudo-progressive company — embrace it whole-hog.
The breadth and frequency of Mr. Trump’s reprisals are well known. Examples include 48 departures from his “A” team and cabinet, 23 of which were “under pressure”, and countless attacks on whistleblowers. And like many American corporations, Mr. Trump relied and relies prolifically on arbitration agreements, non-disclosure agreements (NDAs), and litigation to silence and further retaliate against his perceived enemies.
What specifically do these agreements achieve? Arbitration agreements strip employees of their right to make claims against their employers in court (i.e., publicly). What’s more, the use of mandatory arbitration by employers is growing, with 60 million American workers currently barred from pursuing claims. Unsurprisingly, mandatory arbitration is more prevalent at large companies, and more common in low-wage workplaces and industries composed of majority female and Black workers.
And over one-third of US workers are bound by non-disclosure agreements, which create a confidential relationship between an employer and employee. As with mandatory arbitrations, this percentage is increasing. These agreements are often included as terms of employment to protect trade secrets and business strategies (fair enough), but they are also commonly used to silence victims of bias, discrimination, harassment, and retaliation in exchange for an often meager settlement. In the latter case, the terms of NDAs are expansive, censoring former employees from speaking publicly about a termination, the existence and amount of a settlement, and disparagingly about the company or employees.
The experience of Jessica Denson, a former Trump campaign phone banking supervisor and Hispanic outreach coordinator, offers an example of how employers use these legal agreements to intimidate, threaten, and silence perceived enemies.
Ms. Denson, hired by the campaign in August 2016, filed a lawsuit in November 2017 claiming that her supervisor, Camilo Sandoval, slandered, harassed, and sexually discriminated against her. According to Ms. Denson, the abuses followed a promotion by campaign CEO Steve Bannon of which Mr. Sandoval viewed her to be undeserving. Ms. Denson faced retaliation after bringing her supervisor’s actions to the attention of campaign officials, who then took away her work and banned her from Trump Tower. The campaign responded to her lawsuit not by denying allegations but by suing Ms. Denson for violating her NDA, which she was required to sign “as a condition for her employment,” per Mr. Trump’s lawyer. In her words, “they weaponized [the NDA] against me.”
Most recently, in June 2020, Ms. Denson filed a class-action lawsuit with approximately 100 former campaign employees to void their NDA, which they claim to be too broad, “prohibiting a vast array of speech about a candidate for the highest office and the current president of the United States — forever.” Their claims have been validated by multiple 1st amendment experts. The lawsuit remains open.
“The hypocrisy of corporations that force arbitration and bully terminated employees…at the same time as they publicly claim to be proponents of equality makes the sins of the pseudo-progressive company that much more reprehensible.”
By normalizing retaliation, Mr. Trump has played an immeasurable role in numbing our public disapproval of its deplorable practice. Gradually, and without our conscious awareness, we have become complicit in our own suppression, often by the very companies we put on a pedestal.
And though we may not all have first-hand experience with retaliation, make no mistake that its normalization stands to erode every American’s sense of job security and belief in our ability to succeed on the basis of hard work and merit. Mr. Trump — and the corporations that currently force 60 million workers to exchange their first amendment rights for their right to work — violate the very tenets of our collective American dream, “the ideal by which equality of opportunity is available to any American.” The practice of retaliation is therefore one reserved for dictators — in political and corporate offices alike — and the antithesis of a democracy based on majority rule and individual rights. As Ms. Denson put it succinctly in an interview, “it’s just fundamentally anti-American.”
Though we may never know how many layoffs, furloughs, and reductions to salary and hours have been retaliatory in nature, largely due to NDAs and fear-mongering, we can logically conclude that a global crisis is the perfect time for companies to rid themselves of people they perceive to be problematic, especially in a country that was under the leadership of the Retaliator-in-Chief. The data already show that compared to white people — especially white men — the most vulnerable among us have, in fact, been significantly more economically impacted by the pandemic and so the presence of retaliation is reasonable to suspect.
Pinterest offers one specific example of retaliation during the pandemic. Publicly, Pinterest is known as a “visual discovery engine” where users can “find ideas to spark inspiration,” and a progressive company committed to diversity and inclusion. And yet, there have been a number of reports by former employees that paint a bleak picture behind closed doors. After refusing to sign an NDA upon her termination in April 2020, former Pinterest COO Francoise Brougher wrote about her experience and filed a lawsuit, alleging that she was fired by CEO Ben Silbermann for speaking out about “the rampant discrimination, hostile work environment, and misogyny” at the company — not due to poor performance, as Mr. Silbermann told her, or to COVID-19, as was “buried in one line at the end of a revenue guidance revision.”
As I read Ms. Brougher’s account, I wondered how many others outside of the c-suite experienced something similar during the pandemic (and otherwise), but were not in a position to come forward with their experiences. I suspect the number is appallingly large.
And, to be sure, the practice of retaliation is not limited to “red” or “blue” corporations, which, of course, do not exist. After all, corporations do not limit their lobbying efforts to only Republicans or Democrats, and so even if we perceive them as more right- or left-leaning, their job is ultimately to do whatever is best for business. That said, though, the hypocrisy of corporations that force arbitration and bully terminated employees into signing NDAs that amount to gag orders at the same time as they publicly claim to be proponents of equality makes the sins of the pseudo-progressive company that much more reprehensible.
Today, workplace retaliation is a fact of life in corporate America, but there are ways in which we can protect ourselves. Among those are as follows:
- Protect your rights. Thoroughly read whatever you are asked to sign. If there is an arbitration agreement or an overly broad NDA, ask whether or not your signature is mandatory for employment. If you are required to sign an arbitration agreement or overly broad NDA, consider asking whether an exception could be made. You might even consider refusing to sign an agreement.
- Save and record evidence. If at any point you feel that you have been discriminated or retaliated against, be sure to save correspondence and take notes during meetings, particularly those with so-called “Human” Resources. Even if you signed an arbitration agreement, this documentary evidence may help you hold onto your job or secure a more reasonable settlement.
- Pull the receipts. The goal of retaliation is to bully you into quitting by leading you to believe that you are a failure. Ground yourself in the truth and state it explicitly in written correspondence and looking into the eyes of those retaliating against you. Make it as inconvenient as possible for a corporation to terminate you — they are acutely aware that termination is the most obvious form of retaliation and will avoid it if they are smart. What if they continue to think they are above the law and fire you? Well, sweetie, you have a great case, because you collected evidence prior to the unlawful firing. Clap clap.
There is some hope for change too. The Biden-Harris administration presents an opportunity for workers to reclaim their 1st amendment rights, maybe. Legislation introduced in the 116th Congress to ban mandatory employment arbitration agreements and bar companies from using NDAs to hide harassment will stand a chance of becoming law, especially if we call on our elected officials to follow through.
But, for many, hope for a better, protected future may seem like something reserved only for those still hanging onto their jobs. You can give the discarded employee hope by being an ally. Even if you yourself have not been a victim of bias, discrimination, harassment, or retaliaton directly, take note of how your colleagues are treated. If you witness bad behavior, speak up. If a high-performing colleague is disappeared — even if presented as a pandemic-related layoff — ask questions. And keep in mind that if retaliation is the unofficial policy of your company’s leadership for dealing with those that raise issues, then those mistreated, disappeared colleagues could easily be you one day.
Lindsey Tammen is a former Principal Strategist at Via Transportation, Inc. and currently manages proposals and content for a minority, female-led data management company, Populus Technologies, Inc. She holds a master’s from the University of Oxford and a bachelor’s from Queens University. Her opinion above does not, and is not intended to, constitute legal advice.