Earlier this month, Andrea Mackris, a former Fox News producer who sued her former boss Bill O’Reilly for sexual harassment in 2004, broke her nondisclosure agreement and spoke out about her 17-year ordeal. Mackris’ story was explosive, heartbreaking and familiar to the millions of workers who have been forced into perpetual silence as a result of signing NDAs. It also demonstrated something more — the re-victimization of survivors by our legal system that is, in many ways, even worse than the underlying harassment they experience.
To understand that the #MeToo movement will never succeed until this broken system is fixed, it is worth revisiting the 2004 settlement between O’Reilly, Fox News and Mackris.
Mackris twice recorded O’Reilly lewdly and graphically attempting to pressure her into a sexual relationship. The settlement mandated that she turn over those tapes and any other evidence to O’Reilly and destroy all other records of his alleged harassment. This would allow O’Reilly to retain the only record of his illicit behavior and it would prevent any other woman from issuing a subpoena for it in any future sexual harassment case. Deprived of this key evidence, Mackris could then easily be portrayed as something akin to a nut and a slut.
As if that were not shocking enough, Mackris’ own lawyers agreed to a stipulation that, in the event the tapes ever leaked, they and Mackris would “disclaim them as counterfeit or forgeries,” effectively committing to lie — even though the evidence against O’Reilly was apparently so strong that Fox News and O’Reilly felt it was worth $9 million to make it go away.
Mediating the settlement between Fox News, O’Reilly and Mackris was Marc Kasowitz, who has long defended other men, including Donald Trump, in sexual harassment cases. The agreement states, “any dispute arising out of or relating to the Agreement must first be submitted for mediation to Marc Kasowitz (or another mutually agreed mediator).” To whom did O’Reilly later turn when defending himself against a barrage of sexual harassment allegations? Kasowitz, who, according to the settlement, is still supposed to be the impartial first line of conflict resolution between O’Reilly and Mackris.
The document includes one more key clause: a no-rehire provision that forced Mackris’ immediate resignation from her job and mandated that she could never apply for another one with Fox News or its many affiliates. O’Reilly would keep working at Fox for well over a decade, even as sexual harassment complaints against him piled up. When those allegations exploded into public view in 2017, Fox awarded him a $25 million golden parachute. Many of his victims, who presumably did nothing more than complain about his behavior, were punished by losing their jobs.
Today, Mackris says that her lawyers insisted that she take the quick payout and did not adequately explain to her, a young woman with no legal training, the lengths to which it bound her to perpetual, career-ending silence. Two fresh-complaint witnesses back up her claims. Her attorneys collected $3 million from her settlement.
After Mackris spoke to the Daily Beast, a New York judge issued a temporary restraining order precluding her from further discussing her own truth publicly. O’Reilly has never been silenced by the court in this manner. In fact, he has accused the many women who have settled multiple sexual harassment allegations against him as purveyors of a “political and financial hit job.” Even after he and his former employer paid at least $45 million in settlements to multiple women, O’Reilly has portrayed himself as the victim and the women as grifters. And yet today, Mackris is once again prevented by a court from responding to his claims and protecting her own reputation.
In the years since we filed our own lawsuits against Fox News and its then chairman, Roger Ailes, we have heard from countless women who have told us that the legal system has failed survivors. Our organization, Lift Our Voices, was founded because too many people have been driven out of the workforce due to these silencing mechanisms. And we have made tremendous progress in the last several years, such as a landmark ban on nondisclosure agreements in New Jersey after its governor came under fire for using broad-based NDAs to silence women on his campaign — legislation that should serve as a federal model.
But the old paradigm still exists. Some attorneys settle cases without adequately explaining the nefarious effects of NDAs, including actually forcing survivors to protect predators by mandating that they lie about the very evidence they have collected. Corporate lawyers have so expanded the use of NDAs that they now often apply to every aspect of an employee’s tenure. Lop-sided agreements allow companies and predators to perpetuate narratives that make survivors unemployable — all while ensuring that survivors cannot fight back because they are silenced. No-rehire provisions not only deprive workers of their jobs but prevent them from pursuing their careers — all for the crime of speaking up about sexual harassment or other workplace toxicity.
It’s time to ban nondisclosure agreements for toxic workplace issues. The onus should not be on survivors to become employment law experts. It should be on employers to stop protecting predators and allow women, people of color and other disenfranchised groups to keep their jobs, speak their truth and work with dignity.