A major problem highlighted in “Set the Standard”, Parliament’s landmark report on sexual harassment and bullying in the workplace, is that secrecy and silence hide toxic workplace culture.
The report by Sex Discrimination Commissioner Kate Jenkins shows that serious harm, particularly gender-based harassment and bullying, has been normalized within our own national parliament – and victims have so far been unable to speak.
Central to this practice of concealment is the increasing use of non-disclosure agreements, or NDAs, in Australia.
These agreements have become the focus of public debate since the start of the #MeToo movement in the US. Their harmful effects were demonstrated when it was revealed that Harvey Weinstein systematically used NDAs to prevent his victims from talking about his conduct.
But the tacit effect of these agreements has not yet received as much attention in Australia.
That has changed now with Jenkins’s Respect@Work report released last year and the new Set the Standards report released this week.
Both have recommended a change in the use of NDA with respect to cases of sexual harassment and bullying. The time has come for a serious re-evaluation of these agreements.
What is NDA?
NDAs are restrictive confidentiality regimes. For example, they may have a legitimate role in protecting company secrets such as patents or intellectual property. Such agreements are designed to ensure that an individual or organization that has access to sensitive and often valuable information does not disclose it to a third party.
However, these agreements have been exploited and their use extends far beyond their original limited function.
NDA is now increasingly being used against employees who complain of discrimination and harassment. Organizations often terminate these cases by compensating and then terminating the employment of the person making the complaint, but on condition that the person signs an NDA forbidding them from disclosing the bullying or harassment.
Read more: Who is responsible for keeping Time’s #MeToo ‘silence breakers’ silent?
Indeed, lawyers say the NDA has become standard practice in Australia for employers dealing with complaints of sexual harassment.
The widespread use of NDAs is also reflected in a statement made by a union representing public sector employees to investigate Jenkins. Said it’s common
[…]Once the worker has begun to circulate a complaint to the worker for receiving payments or to process them in a way that limits the damages to their employer. In some cases, employees will be required to sign nondisclosure agreements upon termination of their employment.
The problem with this practice is that the offensive conduct is never formally “known” by the organization’s senior leaders – or by the public.
Often, the offender stays in the organization and is promoted. Or they move to another organization where the abusive conduct continues. Meanwhile, senior managers and human resources deny knowledge of the problem.
In contrast, the victim-survivor is stigmatized and condemned to remain silent forever, unable to defend himself or even talk about what happened.
What did the Jenkins report say about NDA?
In the report, the Human Rights Commission reiterates its serious concerns with the use of the NDA in Australia.
It states that these agreements “should not be made a condition of settlement of complaints” because
The NDA was criticized as ‘cover up’ or ‘shut down’ issues while protecting the respondents.
Instead, the report says, the NDA should be optional for the complainant as a way of protecting their privacy rather than “a blanket condition of the settlement”.
Read more: Jenkins review contains 28 recommendations to fix Parliament’s toxic culture – will our leaders listen?
So what can be done about it?
California has set out best practice in this regard, passing a law in 2018 that bans the use of NDAs in sexual assault cases.
More recently, the state has built on this by passing the “Silence No More Act” in October this year. This law will protect workers who wish to speak out about harassment and discrimination, even if they have signed a nondisclosure agreement. This extends not only to sex, but also to harassment at the workplace or discrimination on any grounds.
Backing the legislation, Senator Connie Leva of California said,
It is unconscionable that an employer would or would ever want to silence the voices of survivors who are subject to racist, sexist, homophobic or other attacks at work.
How can the law in Australia be reformed?
It is clear that the NDA has an impact on people’s willingness to speak out against harassment and bullying. Significantly, these agreements are not only silencing those who have been pressured to sign, but also discourage openness and suppress transparency and accountability in workplaces.
They also have a harmful, systemic effect by signaling to other employees that they should self-censor if they experience similar workplace harm, which makes them afraid to speak up.
Set the standard report – and the wider #MeToo movement – send a clear message: every workplace and organization in Australia can, and should, do better to stop the epidemic of bad behavior.
Therefore, it is time for Australia to ban the use of NDAs in harassment or bullying situations.
Read more: Can the government fix its workplace harassment laws? Its a missed opportunity
We note that others in Australia have made similar recommendations. For example, the Australian Law Alliance has called for a ban on the use of NDAs in all harassment and discrimination cases, except as requested by survivors.
Now that Jenkins has released not one, but two important reports on workplace safety – both of which show the true extent of workplace harassment and silence – we need to protect victims by introducing legislation to improve the use of NDAs in Australia. A step should be taken in that direction.