A wall of silence holding back racial progress in tech: NDAs
Tech employees who spoke to Protocol said they experienced racism and discrimination in the workplace but can't speak out for fear of retribution from their employers.
Earlier this month, Pariss Athena appeared on a podcast to discuss her experiences as a Black woman in web development. During the wide-ranging conversation, she mentioned that she had experienced racism while interning at a large tech company in 2017.
Almost immediately after the podcast was published, Athena asked the host to take it down. She'd forgotten she was under a nondisclosure agreement, or NDA, with the company she interned with and feared she could face legal retribution.
"I outed the company, and I had to delete everything because I forgot I signed an NDA," she told Protocol this week.
Athena, who popularized the hashtag "#BlackTechTwitter," says that during her internship, the company paired her with a back-end developer whose computer background had pictures of Confederate flags and pickup trucks. The man's Facebook page was full of anti-Black Lives Matter posts, including many that featured photos of Black people burning the American flag and attacking police. Ultimately, she said, working alongside him made her "feel like a slave."
"It is frustrating that I can't speak up about it," she said.
Her story is familiar to many people of color who work in the tech industry, who find themselves unable or unwilling to speak out about instances of racial discrimination they have faced because they are bound by stringent NDAs that require them to stay silent publicly about their experiences in the workplace. Amid a national reckoning over race brought on by the killing of George Floyd, many employees have spoken out about racism they experienced in the industry. But still, thousands of stories will likely never be told as tech workers weigh the potentially devastating ramifications of breaking their NDAs, many of which exist to keep instances of workplace harassment behind closed doors.
"Companies are using NDAs as a way to force peoples' silence," said Ifeoma Ozoma, a former Pinterest employee who earlier this month publicly alleged that she experienced racism, discrimination and abuse at the company. She sought the advice of her lawyer before going public in a viral Twitter thread. "That's not right," she said. "If we want the system to fundamentally change, people have to be able to talk about what happened to them."
Six current or former tech employees who spoke with Protocol said they experienced racism and discrimination in the workplace but can't speak out for fear of retribution from their employers. The employees, who either spoke on the condition of anonymity or declined to name the tech companies they worked for on the record, said they believe NDAs are holding back racial progress in the industry, even as the country's top tech companies have vowed solidarity with the Black Lives Matter movement and redoubled their diversity commitments over the past month.
"It's frustrating because it forces people to to speak generally about everything, like, 'Oh, those VCs are terrible' or 'Those big Silicon Valley tech companies are so racist in their hiring or treatment of workers,'" said James Jones, a startup lawyer in Boston. "It's a lot more difficult to ignore and push aside specific individual situations that also come with receipts."
Deep pockets and strict secrets
Nearly everyone in the tech industry has signed an NDA at some point. Polling by Blind this week found that 65% of tech workers report having an NDA with their employer, and 38% of those workers said that agreement limits them from speaking out about "injustices in the workplace."
The issue isn't limited to the tech industry — research has shown that nearly one-third of U.S. workers are bound by NDAs — but they are particularly ubiquitous in tech, according to workplace discrimination lawyer Vincent White.
"[Tech companies] have the deep pockets to pay for counsel, and they have the foresight to decide that preventing [people from speaking out] is worth quite a bit down the road," White said. He said NDAs have become more stringent over the last several years amid the rise in Silicon Valley activism. Bigger companies often even include forced arbitration clauses, which outright prohibit employees from suing them over discrimination complaints.
There are different kinds of NDAs. They range from the somewhat restrictive, general type that new employees often sign before they start their jobs, to the far more specific agreements that are signed by employees after they go through a dispute at the company. Employees typically sign the latter NDA in exchange for a financial settlement or severance.
Most NDAs include noncontroversial provisions that prevent employees from sharing trade secrets or intellectual property. But they sometimes include language to prevent employees from speaking in a negative way about the company or testifying in another person's lawsuit against the firm.
Tom Spiggle, a Virginia-based lawyer who focuses on workplace discrimination, estimated that only about 10% of companies ever actually pursue legal action against former employees for breaking NDAs. But when firms do go after NDA violations, it can ultimately cost the employee anywhere from $10,000 to $100,000 in legal fees, Spiggle said, depending on how far the legal battle goes.
For Nicole Sanchez, the board chair of Code 2040, a nonprofit dedicated to racial equity in tech, the risk is too high. "Like so many others, I wish I could [speak out]," said Sanchez, who is also the founder and managing partner of Vaya Consulting, a top diversity and inclusion advisory firm. "But it means leaving myself vulnerable to a lawsuit against people with way more resources than I will ever have."
"There are too many people in my life depending on me for financial security," she said. "How could I jeopardize them like that?"
The stories untold
Nick DeJesus said it's been hard for him to come to terms with the realization that he likely faced racial discrimination at the cybersecurity firm he worked at for eight months in 2018. DeJesus, who declined to name the company, said he was the only Black man on a team with all white co-workers, who routinely overlooked, ignored and devalued him. He said over time, his co-workers began complaining about him to HR, but when he talked to his manager about the complaints, his manager couldn't name anything that he was doing wrong. At one point, he heard several of his white co-workers belittling a diversity and inclusion training, DeJesus said.
The final straw came during a meeting with about 20 people at the firm, where managers were laying out tasks for each of the teams. They left DeJesus' name off the list. "After seeing all those subtleties, like not being invited or feeling included, and then to not to see my name on a list of who's gonna work on what, that was really uncomfortable," he said.
Ultimately, in response to an increasingly hostile environment, DeJesus quit. He's still unable to talk publicly about it because he's bound by an NDA. "This is a problem that's only been visible to Black and brown people," he said, noting there are "subtleties" that make people of color feel "crazy for even bringing it up."
Debby Jimenez Garcia, who is Mexican-American, has a similar story. She says she experienced months of microaggressions from her white male bosses at an ad tech company in New York City, where she felt they were "setting her up to fail" because she is a woman of color. She ultimately filed a complaint against the company with New York's Equal Employment Opportunity Commission, but retracted it after she negotiated at $12,000 severance package in exchange for her silence. Her NDA, which was reviewed by Protocol, includes a provision that specifically prohibits her from criticizing the company in social media posts.
One Black man, who spoke to Protocol on the condition of anonymity, said he was forced to sign an NDA in order to receive severance pay when he was suddenly laid off from a New Jersey-based ecommerce company last year. He said that after he encouraged one of his employees to report sexual harassment, he was singled out: "Don't act like you're innocent in all of this," the company's CEO allegedly told him.
"When I talked to the head of HR, it turned into an interrogation," he said. "My employee was a white woman, I'm a Black guy helping report it, and now all of the sudden I'm some sort of suspect."
Ultimately, the company's executives apologized for treating him unfairly, acknowledging that it was inappropriate. But he was still terminated two months later, seemingly out of the blue. He was the only Black man at the company.
One Black woman, who works in tech in San Francisco and also requested anonymity, said it's hard to even discuss these kinds of stories with people she knows because "everyone" is bound by NDAs. She said it's common for tech companies to require people to sign restrictive NDAs on their way out after "agitating" for them to leave, particularly after the employee spoke out internally about discrimination they faced at the firm.
"People are scared, they don't know what they're signing," the woman said. "Then something will happen later, and they realize they want their voice back."
What comes next
For a few days at the beginning of June, some tech workers began posting the hashtag #BreakYourNDA. The push didn't get very far, and the hashtag languished.
"I think it has to be more organized and coordinated so that it's not just one person doing it on their own," said the Black woman who works in tech in San Francisco.
There's a lot at stake for employees who chose to speak out, especially underrepresented minorities who fear for their future in the high-paying tech industry. Those same employees often can't afford pricey attorneys to review their NDAs and draft their public statements.
Peter Beasley, the executive director of the nonprofit Blacks in Technology and founder of his own software company, said he thinks the issue goes beyond just NDAs. Often, he says, people of color experience embarrassment and humiliation from the instances of racism they face in the tech industry. And when others see this disparagement happen, and no one does anything, the injurious behavior is reinforced and racism in tech becomes institutionalized, he said.
"Frankly, until now, there was no one to listen," Beasley said. "And there's also [the concern]: Will anybody else speak out with me? And then, will this hurt my chances at my next employer?"
Still, some of the tech employees interviewed for this article said they are hopeful that the country is at an inflection point that mirrors the #MeToo movement, during which hundreds of women intentionally broke their NDAs to speak out about sexual harassment they faced in the workplace.
"Now, I feel more confident sharing these things than ever," DeJesus said. "There's genuine listening happening."
Over the past several years, in light of the #MeToo movement, multiple states have passed new laws and regulations, such as California's CCP 1001, which prevent companies from silencing employees who experienced sexual harassment. Ozoma said she believes the federal government should pass a similar law that prohibits companies from silencing factual information about all discrimination claims.
Until then, Ozoma suggests there's one temporary solution. "If you really want to hear what the issues are at a company," she said, "release everyone from their NDAs."
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