By Jennifer Khor, SHARP Workplaces Supervising Lawyer

With the #MeToo Movement, more stories of sexual harassment and sexual misconduct have become public. Stories of harassers like Harvey Weinstein who repeatedly took advantage of their position of power, preyed on, and caused serious harm to individuals. How can someone continue to get away repeatedly with causing such harm for years? Power, fear, a culture of silence, … but also a legal tool known as a non-disclosure agreement (NDA).

Zelda Perkins, Harvey Weinstein’s former assistant, was silenced by a non-disclosure agreement (NDA) and chose to break it after nearly two decades. Increasingly, there has been criticism on the use of non-disclosure agreements (NDAs) in settlements by employers and harassers to try to silence complainants and hide scandals from the public. Scandals such as Hockey Canada’s use of NDAs to conceal sexual assaults. People like Zelda are leading a global effort to combat the use of NDAs in silencing complainants, educating on the harm caused to the person silenced as well as to others.

What is a Non-Disclosure Agreement (NDA)?

A non-disclosure agreement, or NDA, is a legal document that restricts sharing information that is described as “confidential.” An NDA has no time limits and is intended to keep the parties silent forever. These agreements are sometimes referred to as confidentiality or compromise agreements.   NDAs can be a section of a larger agreement or a separate document.

NDAs were historically used to protect company trade secrets and proprietary information and grew in use during the tech boom. Their use has expanded widely to employment contracts and other types of legal disputes.

NDAs are used to stop people from talking about information or situations the other side does not want to be public. For example, any situation that may affect the public reputation of a company or be personally embarrassing to someone. NDAs are also sometimes used at the beginning of an employment relationship or before a particular event or meeting, to prevent people from talking about anything bad that might happen in the future.

In sexual harassment and sexual misconduct situations, NDAs or confidentiality clauses, are included in settlements to protect the reputation of the harasser and the company by silencing the complainant.

What’s the problem with NDAs?

You may wonder, what is the harm if the complainant signs an NDA as part of the settlement? Signing an NDA means you can’t talk about what happened; this often means you can never speak to anyone, including family, about what happened. NDAs:

  • May prevent a complainant from speaking to family and friends about their own experiences;
  • May prevent someone from getting counselling support needed to deal with the trauma of the sexual harassment;
  • Prevents a complainant from warning others about the harasser;
  • Protects the employer’s reputation and the career of the harasser;
  • Allows the harasser to stay in their position, or move to another workplace without needing to tell their new employer of their misconduct or why they had to leave their previous job;
  • May put the complainant, and sometimes their coworkers, in awkward positions when they can’t speak about what happened: can’t explain problems at work or reasons for leaving;
  • Discourage anyone who wants to speak up about wrongdoing; and
  • Cause people who sign NDAs to live in fear of accidentally breaking the agreement.

Sometimes people think that they will never want to talk about what happened and sign an NDA, but years later, find that they cannot heal because they haven’t been able to talk about and process what happened. Often times, people are put in difficult financial and emotional situations where they feel that signing the NDA agreement is their only option. These situations can add to a complainant’s feeling of being powerless.

If there are no NDAs, why would an employer or the harasser agree to settle?

Most lawsuits are settled before going to court, administrative tribunal, or other decision-making body. There is a common misconception that employers won’t settle without an NDA or that someone has to sign an NDA if they want the employer to negotiate and settle. Most settlements do not have NDAs preventing people from talking about the facts that led to the dispute, although the details of the settlement (e.g., monetary amount) may be confidential. Settlements save the parties time, money, stress and allow people to move on.

Accepting a settlement (with proper legal advice) should bring a case to a conclusion. The exception may be if there was another process such as a criminal investigation, which is not in the parties’ control. An NDA cannot prevent someone from making a criminal complaint as this would be against public policy. Although a complainant may tell the police that they don’t want to make a complaint.

Doesn’t an NDA protect a complainant who doesn’t want their identity revealed?

Not necessarily. Blanket NDAs, broadly worded to prevent parties involved from speaking about any facts, are not needed to protect a complainant’s identity. If a complainant wants to protect their identity, a simple confidentiality clause that restricts the other parties from identifying the complainant will do.

Who would the complainant talk to about what happened?

More often than not, someone who has experienced workplace sexual harassment does not want to talk about it publicly. They do need to talk about what happened to family, friends, so they understand and can provide support. They may want to talk about it with future partners as their relationship develops.

It is important for the person to be able to access any professional or community supports they need to process and recover from the trauma of the experience. This includes counselling, medical treatment, support groups. The complainant would also talk with lawyers and financial advisors in dealing with the settlement. Even in situations where an NDA allows for exceptions to get this type of advice or support, complainants are often worried about whether something is allowed or if they may be in breach of the NDA. The constant fear of breaching your NDA and being sued is stressful and doesn’t allow the person to put the sexual harassment in the past.

In some cases, being able to talk about what happened may make explaining a gap in employment or the reason for leaving a workplace easier to a new employer. Although often people who experience workplace sexual harassment will not want to talk about details.

If someone talks publicly about the workplace sexual harassment that they experienced, won’t that harm the reputation of an employer?

If the employer dealt with the complaint quickly and fairly, the public will be able to see that the employer is responsible and responsive to ensuring a safe workplace. It may encourage others to discuss concerns, report other incidents, and educate workers on what behaviour isn’t ok at work. If there were problems with how the employer dealt with the complaint, the employer may commit to improving processes and providing training. All this contributes to a more respectful workplace and workers who have confidence in their employer. Studies show that there are costs to employers for sexual harassment in the workplace in labour costs and lower profitability, in addition to settlement payments.

How many people are affected by NDAs?

By the secretive nature of NDAs it is difficult to determine how many people have agreed to an NDA. US research suggests that 1 in 3 employees have signed an NDA.

What is happening to end the use of NDAs in sexual harassment and sexual misconduct situations?

There are global campaign efforts to restrict the use of NDAs. In the USA, Gretchen Carson, who broke her NDA after being sexual harassed by Fox News Chair Roger Ailes, co-founded Lift Our Voices. In Canada and the UK, Professor emeritus Julie MacFarlane, and Zelda Perkins founded Can’t Buy My Silence. With increasing awareness of the problems with NDAs in sexual harassment and sexual misconduct cases, some places are passing laws banning or restricting the use of NDAs. This includes at least seventeen US states (e.g., California, Washington, Oregon, New York), and Ireland. In Canada, P.E.I. passed legislation in 2021; Manitoba and Nova Scotia are discussing draft laws. While changes in the laws restrict the use of NDAs, a complainant’s identity can still be protected and kept confidential, and often also allow a complainant to expressly agree to an NDA under certain conditions.

CLAS and SHARP Workplaces want to raise awareness about the problems with NDAs and support restricting the use of NDAs in sexual harassment and sexual misconduct cases in British Columbia. We have joined with Can’t Buy My Silence in these efforts.

What can I do to help?

Because NDAs silence survivors of sexual harassment, it is difficult to collect information on the problems NDAs can cause. If you have experienced sexual harassment in the workplace, we invite you to anonymously share your story. The questions are designed to collect information on the experience of bullying and harassment, including sexual harassment, and how often NDAs are used. You will not be asked to identify yourself or your workplace. The information you share will help us to better understand the issues when NDAs are used and raise awareness about the impact.

To learn more about our NDA campaign and our data partner Speak Out Revolution visit our website: Speak Out: Fight Misuse of NDAs in Sexual Harassment Cases

To support our campaign please follow Community Legal Assistance Society on Facebook and Twitter, and SHARP Workplaces on LinkedIn. If you are interested in hosting a speaking event in your community to raise awareness on the misuse of NDAs, contact us.

If you are experiencing sexual harassment at work in BC, being asked to sign an NDA or have signed an NDA related to workplace sexual harassment and want free legal advice, contact the SHARP Workplaces Legal Clinic, email  SHARPworkplaces@clasbc.net or call 604-673-3143 or 1-888-685-6222 (toll-free in BC).

 

NOTICE: SHARP Workplaces Legal Advice Clinic ceased providing legal services in March 2024 due to an end of funding, and is NOW CLOSED. 

If you experienced sexual assault and need legal advice  contact Stand Informed legal advice services.