How NDAs serve the interests of the powerful and revictimise the powerless…
Silencers of the vulnerable, protectors of the powerful, enablers of predators; Dr. Julie Macfarlane on the immorality of Non-Disclosure Agreements and their presence in Irish society.
What do the mothers who lost their babies to the Catholic Church’s mother and baby homes, the survivors of sexual and physical abuse in Irish residential institutions, thousands of minimum wage workers (especially in accommodation and food service industries where sexual harassment is rife), and a string of Hollywood actors who worked with Harvey Weinstein have in common?
They all signed non-disclosure agreements (NDAs) or” gagging orders” which prevent them from speaking up about what happened to them. Not just speaking up publicly – which isn’t for everyone – but in many cases talking to family, friends, a therapist, or reporting to authorities their experience of trauma, abuse, sexual harassment, racial bullying, pregnancy discrimination, and more.
In other words, they are silenced from telling others about anything that powerful people have an interest in covering up.
Why is this happening?
Why are so many vulnerable people signing up to be silenced? Because they are being told that this is the “only way” they can be compensated. These agreements are constantly pushed on victims by lawyers who tell them they “must” agree to this because “everyone” does.
The continued legality of most NDAs in Ireland and their extremely widespread use to settle employment (and sometimes other civil) cases by buying off the victim with a paltry amount is unconscionable. These practices further isolate those who have already been traumatised by what happened to them and who now live in fear of breaking their agreement and facing fines. What is more, NDAs allow employers to “pass-their-trash” to other workplaces, because perpetrators are promised that their personnel records will be wiped clean. NDAs conveniently align the interests of perpetrators with those of employers, who prefer to bury a scandal without publicity and damage to their reputation.
The reason this is happening is simple – employers and perpetrators have a lot more power and resources than the vast majority of victims. Redressing this power imbalance requires new legislation to ensure that these agreements cannot be enforced against victims or other whistleblowers.
How I learned about NDAs
I am a Canadian law professor and member of the Order of Canada and I have worked in universities (including University College Cork) for 40 years. In 2016, I discovered a secret settlement had been made to protect my university employer (the University of Windsor) and a former colleague after his termination for the harassment and intimidation of students. As a result, he had been able to move to another law school who knew nothing of his history, which the university had covered up (including scrubbing his personnel file clean).
When I spoke to other schools who contacted me about the true circumstances behind his departure – I had first-hand detailed knowledge from students who came to me with shocking and painful stories about him – he was able to successfully sue me for “defamation” in another jurisdiction. How? Because my employer had signed an NDA and hid or removed the official university documents that showed I was telling the truth.
The impact of NDAs
People brave enough to step forward to complain about the behaviour of another individual – who is probably senior to them – often find themselves in a nightmare, where they are disbelieved and challenged.
Zelda Perkins, who was the first woman to publicly stand up and break her NDA signed 20 years earlier with Harvey Weinstein and his lawyers, describes signing as “like having guns at me from every side”. Many other women have described the same experience to me, with or without a lawyer on their side. Many lawyers for victims go along with the demand for a gag, claiming this will help the victim to “move on”.
As a survivor of sexual violence, let me be clear – it does not. In fact, it does the opposite. Moreover, many of those who sign are completely unclear about what they have signed, and what the consequences are – but they are very afraid of the outcomes if they break the agreement.
Many of us who have suffered abuse want our names to stay private, but this is easily achieved with a confidentiality clause that applies just to the identity of the victim. Instead it has become a default to also demand the protection of the identity of the perpetrator. This creates future potential (and actual) victims, as the perpetrator moves secretly on to another place where they can continue their behaviour.
Independent Senator Lynn Ruane wants to change this. I am a proud member of her team working to bring forward legislation banning NDAs which would make Ireland a world leader in protecting victims, rather than perpetrators and their employers (including the Catholic Church).
Ireland needs to stand up for the powerless individuals who have been ripped off when they were forced to sign gag orders. Senator Ruane is documenting (anonymized) accounts from individuals across Ireland, and she will use this to press the case for an amendment to the Employment Equality Acts. She is in good company: another piece of legislation is moving forward in California to ban NDAs for racial discrimination and harassment, co-sponsored by Ifeoma Ozoma, who is also working with Senator Ruane.
How you can help
If you have signed an NDA yourself and regret it, you can contact Senator Ruane’s office if you would like to add your story to her research.
As well, Zelda Perkins and I are initiating an international campaign to bring model legislation like the Senate Bill to other countries including England & Wales, Canada and Australia. We want to build public awareness of the immoral use of NDAs and give people the information and power to say “no” to signing. We are lobbying governments to recognise that the wrong parties are currently being protected with these secret agreements, and to change the law. We are also pressing businesses to adopt a code of practice that says they will no longer use NDAs. Larger corporations – for example the BBC – are already beginning to feel the pressure of public opinion on this.
If you find it repugnant that so many people are being silenced at further cost to others, you can join in creating this pressure. You can contact me on social media (see below).
And please tell your TD or Senator that you want them to support Senator Ruane’s Bill, and why.
To attend the public launch of Senator Lynn Ruane’s Employment Equality (Amendment) (Non-Disclosure Agreement)Bill 2021, a legislative proposal to restrict the use of Non-Disclosure agreements after sexual harassment and discrimination in the workplace, see https://www.eventbrite.com/e/nda-bill-launch-tickets-156683435373
Dr. Julie Macfarlane, C.M. (Member of the Order of Canada), Distinguished University Professor and Professor of Law (Emerita) is on Twitter @ProfJulieMac. Her new book which includes her experience with NDAs is “Going Public: A Survivor’s Journey from Grief to Action” 2020).
Director, National Self-Represented Litigants Project, The National Self-Represented Litigants Project: https://representingyourselfcanada.com/
See Dr MacFarlane’s Podcast Jumping Off the Ivory Tower https://representingyourselfcanada.com/podcast/