Feb 252020
 

The following interview is a republication, with permission, of a post on Democratic Underground by user “H2Oman.” He also granted permission for yo to pass it on,and for anyone you pass it on to to pass it on, and so on. It was an exclusive to Democratic Underground, but it’s not meant to be hoarded. I’ll let him do his own intro first:

==================================================

Recently, I had a conversation with DU community member “Mike 03” about Yale Professor Bandy X. Lee’s book, “The Dangerous Case of Donald Trump.” Originally published in 2017, this important book featured the contributions of 27 psychiatrists and mental health experts. Last year, an updated and expanded version was published, which features contributions of 37 psychiatrists and mental health experts.

When my daughter Chloe gave me my copy of the book, she said that while she knew I did not want to have any books on Donald Trump in my library, she believed that this one was essential reading. From the moment I read the book’s dedication – to Dr. Lee’s Grandfather and Mother – I knew that I’d have difficulty putting the book down. And while I have since added a few other books that expose the madness of the Trump presidency to my library, I recognize “The Dangerous Case of Donald Trump” to be by far the most important.

During my conversation with Mike 03, , I decided to ask Dr. Lee if she might take part in an interview for this forum. For if you want something important done, ask a busy person. They are most likely to do important things. I would like to thank Dr. Lee ….for the book, her appearances in the media to discuss the topic, and for this interview. I hope that community members will thank her, and read and discuss her book.

And now the interview:

Q: Dr. Lee, as you would expect, there are people who feel depressed and discouraged about the process and outcome of the Senate’s impeachment trial. They are anxious about our country’s future. Others recognize that while the House impeachment was a significant victory, that the president is now more likely to engage in dangerous ways. In that context, can you please explain the “duty to warn” that has resulted in your speaking out?

A: It is entirely understandable that people are feeling depressed and discouraged; that he is more likely to engage dangerously is correct from our perspective, also. The error, from our view, has been in trying to solve a mental health problem through a purely political approach, which is why we petitioned the Congress to consult with us. We had cautioned that impeachment could go either way: psychologically, delaying impeachment was risky, because it would cause a sense of unlimited power and impunity to balloon. A rapid progression after delay then maximized the potential for paranoia and narcissistic rage, while the combination of impeachment and acquittal now has created conditions that would heighten the drive for revenge. With each failure to contain the president psychologically, there has been an expansion of dangers as well as worsening of symptoms. We can learn from this experience and recognize that a nuanced, psychological understanding of the situation is paramount—even if political processes are the only interventions we have for psychological limit setting and containment, which are still a lot.

Q: In 1973, Erich Fromm published “The Anatomy of Human Destructiveness.” In it, Fromm detailed how certain social factors, combined with specific personality types found in those in power at the time, create fertile ground for what he referred to as “malignant narcissists” to rise to the top. Do you see instances – saying, putting children in steel cages on the southern border – in our society that concern you?

A: Traumatizing children in a way that will breed injury and violence for society concerns me a great deal! Erich Fromm understood dynamically what I have been studying statistically and epidemiologically. I have always conceived of this presidency as a reflection of the poor state of collective mental health in our society. In fact, I have been fearing this result for about twenty years while watching public mental health decline and what I call “structural violence” increase. Structural violence, such as economic inequality, is one of the most potent causes of behavioral violence, be it homicides, suicides, or warfare, and when the groundwork is laid for a culture of violence, people will be attracted to a leader who does them violence. It was not time to be complacent because homicide rates were declining, even as suicides were rising. My research has been mostly about “connecting the dots,” which I am making great use of now. We have become locked in a vicious circle, where the more violence powerful people do to the population, the more vulnerable it becomes to manipulation and attraction to violence in ways that give violent people more power. It is an abusive relationship cycle at societal scale.

Q: Older people such as myself remember the publisher and an editor of “Fact” being sued for a story that questioned Senator Barry Goldwater’s stability during the 1964 presidential election. This was in spite of the Senator’s wife telling reporters that he had previously suffered a “nervous breakdown.” The “Goldwater Rule” kept this general topic from being reported upon for many years. There are potential dangers in diagnosing someone the clinician has not met. This raises a question: is it possible that what an expert sees in the media, including films of speeches and press conferences, and legal documents, might be more accurate sources of information than the self-reporting of those being evaluated with the Hare Checklist? (This is not to suggest that Senator Goldwater was in that group.)

A:This is absolutely correct. We must distinguish the quality and reliability of information, not just discount all media as a source. For certain impairments, such as personality disorders that cause others suffering but are not bothersome to the self, it is far more accurate to have reports from the person’s acquaintances, the sworn testimony of close associates, and external, direct observation of behavior. If the media presentation is not all staged but shows reasonably candid moments, actual interactions with other people, extensive coverage, and progression over prolonged periods of time, then it can be one of the best sources of information. Interviews, on the other hand, are known to be harmful in some cases, especially when a person is trying to present oneself in the best light and hiding important information. The most dangerous individuals are charming or manipulative, and even the most seasoned clinicians are fooled in a one-hour interview.
“The Goldwater rule” is problematic on many fronts: it should have been invalid since 1980, when our diagnostic system changed from reliance on introspection to observation of external behavior. It also treats the public figure like a patient, when our responsibility is to actual patients and to society, not to public figures we are not treating. Finally, currently it has no exceptions, which means it is the only rule in medicine where danger—an emergency—exception does not apply. This means you must violate the core tenets of medical ethics, and the humanitarian goals that all health professionals pledge to, in order to keep with this one “rule”.

Q: Do those people who are malignant narcissists, psychopaths, or sociopaths ever have periods of psychosis when under extreme pressure?

A: Psychosis is defined as detachment from reality, and since malignant narcissism, psychopathy, and sociopathy can be seen as defects in coping mechanisms, extreme pressure will make them more prone to psychotic spirals. For example, extreme narcissism can lead one to have such difficulty coping with normal human limitations, that one must create an alternative reality where one is superhuman, an expert in all fields, and even heaven-sent. Psychopathy or sociopathy can lead one to believe one is “the walking dead” to help explain the hollowness one feels inside.

Q: Do those referenced in prior question have the capacity for insights on how others view them? Are they capable of experiencing self-doubt or guilty feelings?

A: Insight and empathy are often what individuals with these disorders are missing. Because they have not developmentally gone beyond the stage of distinguishing between “me” and “not me,” other people are merely extensions of themselves or instruments to use for their purposes. They experience self-doubt or guilty feelings through projection: in other words, they perceive the anxiety they feel inside—such as doubt, confusion, and fear—as danger coming from the outside. Unfortunately, attempts to escape or to defeat that feeling translates into attack perceived enemies or, if they are lacking, to seek scapegoats.

Q: If such a person were to be found “not guilty” in a trial for a crime they definitely committed, are they more likely to engage in other anti-social behaviors in the future?

A: Absolutely. Because they are lacking in self-control, if the control does not come from the outside, they will keep pushing their limits. Setting firm boundaries of behavior, and consistently returning with immediate and commensurate consequences for behavior that violates those boundaries, is one of the most important ways to deal with such defects. Trying to elicit remorse, insight, or understanding about one’s behavior will not work. Trying to get them to understand objective laws or rules of fairness will not work, either, for everything will be predicated around the self and whether it benefits or pleases the self.

Q: It was reported that some of the contributors to “The Dangerous Case of Donald Trump” were scheduled to meet with elected officials in Washington, DC. When Democratic floor manager Adam Schiff spoke during the impeachment trial, he summed the president’s personality up quite well. Do you think elected officials fully recognize the threat the president poses?

A: We directly met with groups of lawmakers in December 2017 and January 2018, and they were already “fully on board,” as they told us then. In fact, they showed great concern, and many of them stated that the president’s access to nuclear weapons was of particular concern. Whereas we were looking to lawmakers for a solution, astonishingly, they seemed to be looking to us! Mostly Democrats, they said they could not do anything without being the majority party, while Republicans either would not express how they truly felt or would refuse to meet with us (even though their concerns seemed to be well-known behind the scenes). The lawmakers encouraged us to continue educating the public, for, if public opinion shifted, then they could act.

When we went to the media, however—and the media were extremely responsive at the time—the American Psychiatric Association stepped with press releases and articles, stating we were being unethical and practicing “armchair psychiatry,” using psychiatry as a “political tool” for “self-aggrandizing purposes.” It even mobilized the New York Times to state that psychiatrists need not be heard from, and, after this, press inquiries dried up instantly and almost permanently. Thus, by the time the Democrats had the majority in the House, the topic could no longer even be spoken about, and our situation was worse than before. Our book, however, was distributed by citizen groups to all members of the Senate and a substantial portion of the House. When members of the public approach lawmakers about the book, most say they have at least heard about it, if not read and have avidly recommended it to colleagues.

Q: On MSNBC’s “The 11th Hour with Brian Williams,” Columbia University’s John McWhorter told a story about Trump that he leaned from a reliable source. As a teen, Trump hung a small child out of a window by his ankles, and enjoyed the child’s suffering. Would such behaviors add to or reinforce your thoughts about him?

A: It is not a surprising anecdote, and consistent with the story of throwing rocks at an infant neighbor when he was a child, and punching a music teacher in the face while in primary school. Those with psychopathic or sociopathic tendencies enjoy others’ suffering, as they envy others for having something that they lack. The human ability to sense others’ feelings, to care about one another, and to do things that help rather than harm others, is something they do not have. Everyone has this, no matter one’s background, personality quirks, or lifestyle—unless one is a psychopath or a sociopath—and this exclusion from the communion of human beings can be very painful. Instead of facing this inner feeling, they transfer the pain onto others, which manifests as cruelty and pleasure at others’ suffering.

Q: In 2019, the updated edition of “The Dangerous Case of Donald Trump” was released, with insights from 37 psychiatrists and mental health experts. Has the year that followed changed your mind on the threat he poses?

A: Not at all. As expected, the psychological dangers we saw translated into social, cultural, political, and global dangers through the office of the presidency. He followed exactly the course we predicted, on the timeline we estimated. Not only that, we have gotten so good at predicting his actions, we sent in a letter of warning to the Congress three days before he withdrew troops from northern Syria and caused the massacre of our Kurdish allies. We sent in another warning about an impeachment proceeding without guardrails, and one month later there was the assassination of Qassim Soleimani of Iran. We warned of the continued need to contain the psychological dangers, and now the president is on a revenge spree against those who lawfully testified against him and pardoning criminals while declaring himself the law of the land. Because someone with his condition grows worse in a position of power, no matter what—whether you give into his pressures for more power or try to restrict him does not matter—we have not seen the worst yet.

Q: For those who are feeling depressed and anxious about current events, do you have any suggestions?

A: I have often said that “the Resistance” is like the immune system of the body: we must replenish ourselves, know our target, and keep healthy! We should take mental hygiene seriously and practice it regularly. It may sound strange, but this means setting boundaries to protect our personal and leisurely lives. Far from being selfish or complacent, doing the things we enjoy and giving time to our loved ones are all a part of responsible action. Allot in advance a reasonable time for the fight, and do not go beyond it. When in it, use the time intelligently and creatively—and this includes listening to the mental health experts! What is exhausting to others is what mental health professionals deal with on a daily basis, and we ourselves protect our mental health through boundaries while treating the sickest individuals! Correctly understanding what is happening is most of the battle, and there are proven techniques for managing the difficult behavior we see. Even if some methods cannot be applied to a president, the principles still apply, and there are lots of things that the public can do. In fact, if only one recognized that true power rests with the people, and the posturing and bullying are actually façades—or fake power, like the Wizard of Oz—the people could achieve a great deal.

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Feb 252020
 

I’m sorry, but I need to take the day off.  On the whole, my blended diet has been going very well, but my eggs and potatoes blend is a total failure.  It gave me screaming heartburn that is so severe that I cannot concentrate on research.  I should be back in the saddle tomorrow.  Hugs to all.

Jig Zone Puzzle:

Today’s took med 6:47 (average 4:55).  To do it, click here.  How did you do.

Cartoon:

Last Night’s Supper:

0225LastNightSupper

RESIST!!

Vote Blue!!

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The State of the Race–2/24

 Posted by at 11:28 am  Politics
Feb 242020
 

We in a brief pause, before The SC Debate tomorrow, the SC Primary Saturday, and Super Tuesday a week from tomorrow.  So here is a look at the state of the race as of now.

0224Bernie

Energized by his landslide victory in the Nevada caucuses, Senator Bernie Sanders turned his focus to President Trump on Sunday while his campaign made plans to try to win the coming South Carolina primary and amass an insurmountable delegate lead on Super Tuesday next week.

Mr. Sanders plans to be up on the air with commercials in every South Carolina media market this week, and his staff is scrambling to add new rallies to his schedule as they take aim at their next big target: overtaking the front-runner in Saturday’s primary there, former Vice President Joseph R. Biden Jr., to all but extinguish his candidacy.

But attacks on Mr. Sanders began mounting on Sunday, with Mr. Biden criticizing him as disloyal to former President Barack Obama — a charged message with the predominantly black electorate in South Carolina — and others describing the Vermont senator as a long shot against Mr. Trump. Mr. Sanders, in turn, used a rally in the Super Tuesday state of Texas to highlight some favorable polling numbers against the president — and attempt to reassure Democrats about his electability if he wins the nomination…  [emphasis added]

Inserted from <NY Times>

I haven’t given up on Liz, but Joe’s attacks on Bernie are as disingenuous as are criminal Trump’s* attacks on Joe.  Bernie criticized Obama, but so did I.  Neither of us was disloyal to him at any time.  In addition, whether ANY Democrat beats Trump* is up to us.  It will happen, if and only if we make it happen!

Here is the latest delegate count.



State

Date

Delegates*

Sanders

Buttigieg

Biden

Warren

Klobuchar

Steyer

Yang

Gabbard

Primaries/

Caucuses

Open/

Closed

Pledged
Delegates

3979

35

24

10

8

7

0

0

0

 

 

Superdelegates

(771)

0

0

0

0

0

0

0

0

 

 

Total
Delegates

(2,382 Needed after 1st
Ballot)

4750

35

24

10

8

7

0

0

0

Pledged
Delegates

(1,991 Needed on 1st
Ballot)

3979

35

24

10

8

7

0

0

0

 

 

Iowa

February
3

41
(8)

12

13

6

8

1

0

0

0

Caucus

Semi-open

New Hampshire

February
11

24
(9)

9

9

0

0

6

0

0

0

Primary

Semi-closed

Nevada

February
22

36
(12)

14

2

4

0

0

0

0

0

Caucus

Closed

Here are latest SC Poll Results



Biden

24.5

Sanders

21.5

Steyer

16.5

Buttigieg

10.8

Warren

9.5

Klobuchar

6.5

Biden +3.0

 

 


Bernie Sanders has the best chance of any candidate, at this point.  I think that when Super Tuesday is in the books, we’ll all have a much better idea.

RESIST!!

Vote Blue!!



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Feb 242020
 

Yesterday WWWendy and I cooked up a storm.  We made liquified Progresso Italian Wedding Soup and crackers, liquified Campbell’s Chunky Sirloin Burger Soup and spaghetti, liquified chili con carne, rice, mixed veggies, tomatoes, jalapenos, and chili powder (watch out Squatch), liquified fried eggs, hash browns, and milk, and liquified sliced peaches and cottage cheese.  The chili was damn good, for baby food.  The Chunky (NOT!) Soup wasn’t bad.  The eggs and taters were a problem, because they glopped-up in the fridge overnight.  I needed to add a load of milk to soften it up.    Then it hardened while I was eating it.  Bring on the heartburn.  It will be trial and error.  Today was supposed to be a lazy day, but I had to work on my grocery list and schedule my PET Scan (for Friday) and Lift rides.  Oh God, it’s Monday.

Jig Zone Puzzle:

Today’s took me 3:31 (average 4:58).  To do it, click here.  How did you do?

Cartoon:

Short Takes:

From Daily Kos: In an unapologetic display of animal cruelty, an anonymous group of terrible people released over two dozen pigeons into Las Vegas, with political accessories affixed to their heads. The group, which will not be named here, released the abused birds on Tuesday, in a “sarcastic” protest of the Democratic presidential debate the next day. 

0224MAGAPigeonsinLasVegas

Republicans have no qualms about cruelty to animals. Look how cruel they are to people. And why did they need birds in the first place?  Deplorable Republicans also wear MAGA hats, also squawk and tweet about their criminal Fuhrer Trump*, and also shit all over everything.  RESIST!!

From NPR: The daredevil “Mad” Mike Hughes was killed in a rocket launch gone wrong Saturday in Barstow, Calif., two witnesses to the accident confirmed. He was 64.

It was the third launch for Hughes in one of his homemade rockets and part of his eventual plan to be able to determine for himself, up in the sky, if Earth was as flat as he proclaimed to believe.

Anyone, who would get in a homemade rocket to prove the earth is flat, was so stupid, that he has to be a Republican. Condolences to his family, but I’m sure glad Trump* can’t appoint that dingbat to head the National Science Foundation.

From YouTube (a blast from the past): Gerry & The Pacemakers – Ferry Cross The Mersey (1965)


Ah… the memories!  RESIST!!

Vote Blue!!

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Feb 232020
 

It’s a very busy day, here in the CatBox.  WWWendy worked late at her night job, so she’ll be a bit late today.  We have a ton of stuff to do.  Happy Sunday.

Jig Zone Puzzle:

Today’s took me 3:24 (average 5:27).  To do it, click here.  How did you do?

Cartoon:

Short Takes:

From YouTube (MSNBC Channel): Sen. Bernie Sanders Is The Projected Winner Of The Nevada Democratic Caucus

Kudos to Bernie, and sad condolences to Liz! I’ll post the delegates total, when Nevada is done counting.  RESIST!!

From YouTube (CNN Channel): Anderson Cooper on Rod Blagojevich claim: Just nuts

Blago comparing himself to Nelson Mandela is like comparing a steaming pile of shit to a Rose. Blago is calling himself a ‘Trumpocrat’. He’s no kind of …crat. The way he talks and acts, he’s an dishonorary Republican, like that other famous Illinois political criminal: Chicago’s Mayor Richard Daley.  RESIST!!

Also from YouTube (CNN Channel): Warren insults Bloomberg after Nevada caucuses

While her candidacy is in deep doo doo, we owe Liz a major debt of gratitude for exposing Bloomberg to America. Her insults are far less than he deserves.  RESIST!!

From YouTube (a blast from the past): The Mamas And The Papas – California Dreamin’. Audio Gold Song ful HD.mp4

Ah… the memories!  RESIST!!

Vote Blue!!

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Is Bernie Russia’s Choice?

 Posted by at 9:56 am  Politics
Feb 222020
 

To avoid any misunderstanding, my answer is an unequivocal “NO!”  Nevertheless the propaganda mavens and liars, who speak for the Republican Reich, are crowing that Russia is getting involved in the 2020 election to help Bernie Sanders, not their own criminal Fuhrer, Donald Trump*, based on the following.

0222Bernie

Russia has been trying to intervene in the Democratic primaries to aid Senator Bernie Sanders, according to people familiar with the matter, and Mr. Sanders said on Friday that intelligence officials recently briefed him.

The disclosure came a day before the Nevada caucuses, where Mr. Sanders is a favorite, and followed revelations a day earlier that Moscow was interfering on President Trump’s behalf this year, as it did in 2016.

Mr. Sanders denounced Russia in a statement, calling President Vladimir V. Putin an “autocratic thug” and warning Moscow to stay out of the election. Drawing a contrast with Mr. Trump, he said he would stand against any efforts by Russia or another foreign power to interfere in the vote….  [emphasis added]

Inserted from <NY Times>

Here is more of Bernie’s response.

Officials tell Sanders Russia is trying to help his campaign

Although Republicans are blaming Bernie for not coming forward with this information a month age, remember that intelligence briefings to presidential candidates are classified and may not be divulged.

So why is Putin [R-RU] trying to help Bernie?  The obvious answer is that he’s trying to move voters away from moderate candidates, because it’s easier to hand the election to Trump*, if he’s running against a progressive.  I think the obvious answer, like the common wisdom it reflects, is wrong, because Putin knows that the publicity surrounding Russian help will really hurt Bernie.  That’s what Putin is trying to do.

Putin appearing to help Trump doesn’t hurt Trump, because Republicans, lacking in ethics, drool for Russian help.  But Democrats, who are far more ethical, object to Russian interference, so it hurts any candidate that appears to receive it.  So the real question is this.  Why is Putin trying to hurt Bernie?

Putin is afraid to have his puppet run against a progressive, who can excite and motivate voters to turn out.  He thinks he can steal the White House from an establishment Democrat, like he did from Hillary.  Since Putin wants Trump to run against an establishment Democrat, and Bernie is the progressive front runner, he’s pretending to support Bernie.  If Liz were the progressive front runner, we’d be having this discussion about her.

RESIST!!

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Feb 222020
 

The labs are in, and the news is bad.  I do have esophageal cancer, probably in stage III.  That gives me a three year survival rate of 32%, with chemo and radiation.  The next stage is a nose to knees Pet Scan.  So it’s not a happy time in the CatBox.  I plan to get our hosting paid at least a couple years in advance and take steps to transfer ownership of Politics Plus to Nameless, Lynn, Joanne and Lona on my passing, so the community here will survive me.  I plan to dedicate whatever time I have left to do as much good as I can.  I’m very tired.  I had an emergency Republicosis run at 1:30 AM.  Fortunately, I made it to the throne without accident this time.  Tomorrow, please expect no more than an Open Thread.  It’s a WWWendy day, and we have lots of extra work, using the new blender to prepare food less likely to get stuck in my tumor.  Have a great weekend.

Jig Zone Puzzle:

Today’s took me 3:37 (average 5:10).  To do it, click here.  How did you do?

Cartoon:

Short Takes:

From ProPublica: President Donald Trump’s new acting intelligence director, Richard Grenell, used to do consulting work on behalf of an Eastern European oligarch who is now a fugitive and was recently barred from entering the U.S. under anti-corruption sanctions imposed last month by the State Department.

In 2016, Grenell wrote several articles defending the oligarch, a Moldovan politician named Vladimir Plahotniuc, but did not disclose that he was being paid, according to records and interviews. Grenell also did not register under the Foreign Agents Registration Act, which generally requires people to disclose work in the U.S. on behalf of foreign politicians.

FARA is the same law that Trump’s former campaign manager Paul Manafort and former deputy campaign manager Rick Gates were convicted of violating. (Manafort went to trial. Gates pleaded guilty.)

Although such behavior would disqualify a Democrat, in the Republican Reich, proof of such criminal corruption must be tendered by all applicants seeking employment in high office.  RESIST!!

From YouTube (Parody Project Channel): GHOST DONALD IN THE SKY – Parody


Wonderful! May your song be prophetic about the political demise of every Republican politician starting with Bought Bitch Midnight Moscow Mitch and continuing beyond Criminal Fuhrer Drumpfenfarten*!  RESIST!!

From YouTube (a blast from the past): The Byrds – “Mr. Tambourine Man” – 5/11/65

Ah… the memories!  RESIST!!

Vote Blue!!

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Everyday Erinyes #205

 Posted by at 8:45 am  Politics
Feb 222020
 

Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage. These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that. As a reminder, though no one really knows how many there were supposed to be, the three names we have are Alecto, Megaera, and Tisiphone. These roughly translate as “unceasing,” “grudging,” and “vengeful destruction.”

There’s pretty well nothing in this article which couldn’t have already been written (and much of it actually was, regarding Bill O’Reilly) about Trump and Weinstein and a host of others. It’s relevant now – well, it’s relevant all the time, but it’s in the news now because Bloomberg is in the news. And it does clarify the difference between two categories of what are generally lumped together as “NDA”s, and also goes into what some state governments are attempting to to to minimize/mitigate unfairness.
==================================================================

Nondisclosure and secrecy laws protect Bloomberg – not the women who sued him

Billionaire Mike Bloomberg and Sen. Elizabeth Warren had a heated exchange.
AP Photo/John Locher

Elizabeth C. Tippett, University of Oregon

Billionaire and former New York City Mayor Michael Bloomberg received a lot of flak at the Feb. 19 Democratic debate for his refusal to release employees who sued his company from nondisclosure agreements.

He admitted to having a “few nondisclosure agreements,” after Sen. Elizabeth Warren challenged him over the issue. They are “agreements between two parties that wanted to keep it quiet and that’s up to them,” he added. “They signed those agreements, and we’ll live with it.”

These types of agreements, also known as NDAs, have been blamed for keeping women silent about sexual harassment and assault in the workplace, particularly in the #MeToo era.

Such contracts, written to keep business information or settlement terms confidential, have been targeted by state lawmakers in recent years, with varying degrees of success.

What exactly are nondisclosure agreements? And why haven’t legislatures been able to fix the problem?

Confidentiality agreements vs. settlements

Media accounts tend to refer to “nondisclosure” agreements as a generic label for any contract that requires someone to keep a secret.

But when I worked as an employment lawyer, we dealt with two different types of agreements containing nondisclosure provisions: standard confidentiality agreements, which aim to protect an employer’s business secrets; and settlement agreements, intended to resolve actual or potential legal claims.

Standard confidentiality agreements are quite common. Employers typically ask employees to sign them at the start of employment to protect the company’s research and development, trade secrets and other nonpublic information.

The problem is that an employee without legal training might believe that these agreements are more restrictive than they actually are. The contracts tend to define “confidential information” very broadly, and a worker might assume he or she can’t speak out about discrimination or harassment.

Legislatures like California have tried to address this problem by prohibiting employers from demanding confidentiality about “unlawful acts in the workplace” – like sexual harassment – as “term or condition” of employment.

This legislative approach can be effective in limiting nondisclosure provisions in standard employer agreements. Companies can comply with the statute by including a carve-out clarifying that employees are allowed to disclose harassment or other unlawful activity.

It’s an elegant legal fix. Companies can still protect their trade secrets through a standard confidentiality agreement. At the same time, the carve-out educates employees about their right to speak out or pursue legal action.

Employees might assume that standard confidentiality agreements extend beyond business information.
nito/Shutterstock.com

Settlement agreements are different

Settlement agreements are a lot less common. And they present more difficult questions when it comes to secrecy.

Settlement agreements tend to come about when an employee is leaving a job and the employer is paying him or her in exchange for waiving legal claims. They often arise if an employee has threatened to bring a lawsuit or actually filed one against the company. For example, in 2017 former Fox News host Bill O’Reilly reportedly secretly settled a sexual harassment claim by a network contributor for US$32 million.

The author and fellow law professor Jennifer Reynolds analyze secrecy provisions from a settlement involving O’Reilly.

And it would seem that at least some of the settlement agreements that Bloomberg has with the workers who have accused him or his company in the past of harassment or discrimination contain nondisclosure provisions. Of course, that doesn’t mean we can’t know anything about those cases; court filings and judicial decisions remain publicly available regardless of the terms of a settlement. But, depending on the terms of the agreement, it might prevent the plaintiff from speaking with a journalist about the lawsuit.

Thus far, states have been reluctant to impose an outright ban on nondisclosure provisions in settlement agreements, on the theory that workers might, in some cases, prefer confidentiality. As a result, they have added exceptions that allow secrecy in some circumstances.

In New York, where Bloomberg’s company is headquartered, a 2018 law limited secrecy provisions in sexual harassment settlements to situations where the plaintiff in the lawsuit prefers confidentiality and has been given 21 days to consider the deal and seven to change their minds.

In other words, the law is a speed bump to secrecy, not a stop sign.

Either way, this law applies only to contracts signed after the law went into effect. It is also limited to settlements involving “sexual harassment” claims, whereas some of the claims against Bloomberg’s company appear to arise from alleged sex and pregnancy discrimination and retaliation.

That may explain why Warren was pushing so hard for Bloomberg to release his former employees from their nondisclosure provisions: The law is not on their side. Ultimately, it’s up to Bloomberg.

This is an updated version of an article originally published on Nov. 21, 2017.

[Get the best of The Conversation, every weekend. Sign up for our weekly newsletter.]The Conversation

Elizabeth C. Tippett, Associate Professor, School of Law, University of Oregon

This article is republished from The Conversation under a Creative Commons license. Read the original article. ==================================================================
Are there any ways to protect oneself in advance? The website Glassdoor dot com used to be a truly helpful resource for people who wanted to know what working for a particular employer was really like. It appears to have turned into just another job search site. It was bought out from the original founders in 2016, although one of them is still acting as CEO; I can’t say how influential that purchase was, or how much of the changes were user-driven. Anonymous reviews of employers are still a part of the the site, but no longer its primary focus. Just looking quickly, I saw nothing about harassment.

Alecto, Megaera, and Tisiphone, The differences in the way these agreements are written can be mindboggling. While I certainly hope no one here will be in a position to have to cope with one, I can ask that you help anyone who is in such a position find really good lawyers.

The Furies and I will be back.

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