Tragic consequences of non-disclosure agreements | Jo-Anne Stark
Monday, January 09, 2023 @ 1:47 PM | By Jo-Anne Stark
I was approached by a client who was subjected to sexual harassment on the job a year ago; there was an investigation and due to the stress of everything, she eventually left and found a new job. She was approached by a friend who was wanting to work for the same company, but she isn’t sure whether she can tell her friend about the sexual harassment she experienced. In fact, she isn’t really sure whether or not she can even talk to a therapist about the experience — due to the fact that she was required to sign an non-disclosure agreement (NDA) when she filed the complaint with her human resources officer. Since when did NDAs become a tool to silence victims of harassment?
This is a good question, and one that deserves some reflection on the history behind non-disclosure agreements!
NDAs were initially created to protect trade secrets. An NDA is typically used when confidential information is shared with potential advisers, investors, suppliers and other stakeholders. It is designed to prevent the company (or person) receiving information from using or disclosing it. However, somewhere along the way, the NDA became a tool used by organizations, corporations and public bodies when they investigate complaints of sexual misconduct and human rights violations. In fact, its use has become commonplace even within unions.
At the end of the day, many organizations would prefer to retain key employees who are deemed valuable — perhaps based on their seniority, experience or ability to bring in revenues. As a result, there is a tendency to “bury” the complaint and any settlement that is ultimately made to a victim of harassment. This is accomplished through a simple NDA which effectively silences the person.
Of course, the fallout of such an agreement can be devastating for the person involved. The perpetrator often continues with their employment under the protection of the NDA. So really the problem has not been addressed, and the person who can rely on the protection of the NDA may feel entitled to continue their behaviour.
These NDAs also “gag” victims permanently — meaning they are prevented from speaking to friends, family members or even health-care providers about their experiences. These agreements effectively force victims to lie — about why they left an organization, why they are struggling emotionally or why they are dealing with a legal problem.
The most powerful impact is that NDAs make it difficult for anyone who wants to speak up about abuse or harassment. These agreements that are forced upon victims change the climate and act as a deterrent to prevent others from coming forward. This is definitely a step backwards in the #MeToo movement!
For those who would argue that unions would offer additional protection for victims of harassment, the Canadian Labour Congress presented a report in 2022 that union members are less likely to report sexual harassment and violence than those in non-unionized settings. At the end of the day, protection is likely to be afforded to those who have the most power and influence within an organization, and generally that is not the victim.
There is a grassroots movement taking place in Canada and in other countries that is fighting to change this dynamic. The Can’t Buy My Silence campaign is lobbying governments and legal professionals to end the misuse of NDAs — and with news about Hockey Canada, Harvey Weinstein and so many other examples coming to light — it’s time for legal professionals to take a stand for those unable to use their voice. Survivors of sexual harassment and human rights violations ought to be treated with respect and retain their voice; it is the only real way the perpetrators of these harmful acts will be held accountable — and to prevent harm to others.
The Canadian Bar Association has published a resolution to its members to promote awareness of the misuse of NDAs in Canada; voting takes place in February. It’s a small step forward — one where lawyers can be a part of the solution instead of being a part of the problem.
Jo-Anne Stark, B.Comm., J.D., CLC, is the founding president of the non-profit Legal Coaches Association and author of Mastering the Art of Legal Coaching. Find her on LinkedIn.
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