In Australia, three quarters (75%) of legal professionals report never having resolved a sexual harassment complaint without the use of a strict non-disclosure agreement (NDA)1, In fact, they consider the use of these legal contracts to be ‘standard’. Under the model Work Health and Safety (WHS) Act, workplaces have duties under WHS laws to ensure employees are not exposed
to psychosocial hazards, including sexual and gender-based harassment2
. However, blanket NDAs prevent employees who have experienced sexual harassment at work from ever being able to talk about these traumatic experiences, even to a trained healthcare professional and despite therapy being a common and effective treatment for people with PTSD3
.
With a National Inquiry into Sexual Harassment in Australian Workplaces finding the use of NDAs “can contribute to a culture of
silence, which disempowers victims, covers up unlawful conduct and facilitates repeat offending4 – law reform is needed to ensure NDAs aren’t misused in workplace sexual harassment and discrimination settlements.
Director of Working Women Queensland, Eloise Dalton, says NDAs were initially developed to protect sensitive and confidential information, however these legal contracts have now become a tool for perpetrators to silence victims.
“NDAs require all parties to maintain confidentiality, however they are almost always requested by the employer, and not the employee. These settlements fail to address a victim-survivor’s experience of sexual harassment or discrimination, and the terms don’t ensure that the perpetrator will not continue their behaviour.”
Blanket NDAs typically last indefinitely, and stop workers from talking to friends, family and medical professionals about their experience, as well as preventing them from discussing the complaint process, employer’s response and settlement details.
This means that if a victim-survivor later changes their mind and wants to speak out or seek further help, the employer or perpetrator
may apply for a court action to stop them, risking the employee having to pay damages or legal costs. “We are calling for an inquiry to be held into how NDAs are used in the workplace, as the first step towards state and federal law
reform. There is an urgent need to introduce legislation that restricts strict or blanket NDAs to prevent their misuse in workplace sexual harassment and discrimination settlements,” Eloise says. The proposed legislation changes would recommend NDAs to only be enforceable if victim-survivors have sought and received independent legal advice from practitioners who have undergone specific trauma-informed training. Additionally, the duration of NDAs would also be limited, allowing victim-survivors to waive their NDAs within a reasonable timeframe.
Further recommendations include mandatory reporting and compliance on the use of NDAs by employers, and allowing disclosure of workplace issues to a victim-survivor’s chosen support system, including lawyers, medical professionals, and union representatives. “The way NDAs are currently being used to minimise damage to the reputation of perpetrators is a barrier to progress and prevents us from understanding how sexual harassment and discrimination claims are resolved. The concealment within organisations protects perpetrators, resulting in potential further harm,” Eloise says.
To promote safer and more transparent workplaces, Working Women Queensland is calling for the Queensland Attorney-General to launch an inquiry into the misuse of NDAs in the workplace, as the first step towards state and federal law reform which would ensure justice for those affected by sexual harassment and discrimination. Eloise concludes, “Legislative change is no small feat, but businesses can take the first step by reviewing how they use NDAs, while ensuring victim-survivors seek and receive independent legal advice from trauma-informed practitioners.”
Queenslanders are urged to #SignWithCaution and can help #PutAnEndToNDAs by showing their support for law reform by signing the e-petition calling for an inquiry to be held into the misuse of NDAs in the workplace. For more information or to sign the petition, head to https://chng.it/n6CVKk7nBB.