Note: this is a fictionalized blog post for educational purposes. This blog refers to sexual harassment and assault and may be triggering.
Before I was harassed at work, I didn’t know much about non-disclosure agreements (NDAs). I remember #MeToo stories about famous men using NDAs to cover-up scandals. I never thought my employer would ask me to sign an NDA. When it happened, I had a lot to learn, while trying to recover from the sexual harassment and assault I experienced.
What are NDAs?
An NDA is a legal agreement to keep something secret and confidential. An NDA is a legally binding contract to stay silent about something. In other places (like PEI), governments have made laws to protect people who experience discrimination, harassment or sexual misconduct that limit NDAs. Unfortunately, there are no rules like that in British Columbia (at least not yet).
In my case, I was sexually harassed at work. When I brought it up, my employer did not address it and the harassment got worse. Then I was sexually assaulted. I stopped working and felt I couldn’t go back. As part of my exit, my employer wanted me to sign an NDA. The NDA meant I would have to stay silent about the harassment and assault and give up any legal claims. My employer pressured me to sign it right away. They said that I would only receive my severance pay if I signed. It felt like they were using my severance (which was my legal right) to force me to sign the NDA.
How is that fair?
I was one employee up against a big company and their lawyers. Contracts are supposed to be between parties that can negotiate on equal terms. I felt like I didn’t have the power to bargain or negotiate the terms of this agreement on my own. They had their lawyers involved but wanted me to sign without giving me time to get legal advice. I needed the support of someone who had my best interests at heart. It’s a good idea to get independent legal advice before signing a contract.
Who can help?
I decided not to sign their NDA. It was hard but I knew something felt wrong. I contacted Community Legal Assistance Society (CLAS)’s Stand Informed Legal Advice Services and received free legal advice. My lawyer helped me understand my rights and explained that my employer failed to protect me from the harassment. That meant I had a legal claim against them. The lawyer also helped me understand that I didn’t need to agree to an NDA. I didn’t want to sue, but I did want compensation without an NDA. With advice from the lawyer, I wrote a letter describing the harassment and assault, asking for compensation not just severance pay. I also asked for a reference letter. After I sent the letter, my employer and I negotiated. Since I knew my rights, I could negotiate a better settlement with no NDA. In the end, I got more money, a good reference, and I didn’t have to keep what happened a secret. Talking about what happened with friends, family, my counsellor, and people at my church helped me.
Why are NDAs a Problem?
NDAs can cause more trauma to the person who experienced harassment or discrimination by forcing them to remain silent. NDAs can protect harassers and allow wrongdoing to continue. They can make it more difficult to find another job. For example, my friend Mary also experienced sexual harassment in the workplace. She told me she was “not allowed to talk about that,” which makes me think Mary signed an NDA.
NDAs cause mental and physical harm.
Imagine not being able to tell your friends, partner, elder, therapist, or even your doctor about a traumatic experience because of an NDA. I found it healing to speak about the sexual harassment with people in my life. Mary never talks about what happened to her. She has lost weight and complains she is sick more often. She told me she has depression and anxiety now. Mary’s marriage also recently ended, and she had to move home with her parents. Assuming Mary signed an NDA, it has cost her a lot. I won’t ask Mary about it because she could possibly break her NDA by answering. If Mary’s former employer found out she broke her NDA, they could sue her.
Who do NDAs really protect?
After my harassment, I worried about women at my office working with my harasser. I wanted my employer to stop the inappropriate behaviour and correct the toxic work culture. A good employer should make the workplace safe for everyone, and not sweep sexual harassment under the rug. That is why I pushed my employer to agree to implement a sexual harassment policy. But in Mary’s case, it is likely nothing changed at her former workplace. That is because NDAs are focused on keeping the harassment a secret. The NDA protects the reputation of the company and the harasser, not the person who was harassed.
NDAs can hurt your career.
In my case, I was able to negotiate a good reference and speak freely about why I left my last job to new employers. This helped me find a similar job in a short amount of time. Mary left her high paying job and now works part-time in retail. I think she may have had issues finding another job in her field because she had no reference or explanation for leaving her last job. And now, the longer she is away from her field, the harder it will be to re-enter it. In a lot of cases, NDAs can really hurt your career.
What can you do if you are faced with an NDA?
Do not sign anything without getting independent legal advice. Remember, you have options. Check out the SHARP Workplaces Fact Sheet about NDAs for Workers [insert link] for more information.
Community Legal Assistance Society and Can’t Buy My Silence are working to stop the misuse of NDAs, you can find out more at CLAS’s NDA campaign and Can’t Buy My Silence.
If you have been sexually assaulted, CLAS’s Stand Informed offers free legal advice to anyone in British Columbia who has been sexually assaulted: https://clasbc.net/get-legal-help/stand-informed-legal-advice-services/
Disclaimer: This blog contains general information only. It does not and is not meant to be used as legal advice. If you need legal help, contact a lawyer.
Photo by Annika Wischnewsky on Unsplash.