Employment laws have long been outdated. Here’s how they have worked against antidiscrimination policies.
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?
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.”