The rationale for outlawing non-disclosure agreements in workplace bullying and sexual harassment complaints is one that is simple in theory – victims should not be silenced about their experiences. And it is a popular view – one that is being championed by Sex Discrimination Commissioner Kate Jenkins and others.
But as lawyers who act on both sides of the table the case for banning employers or those alleged to have bullied or harassed from imposing a non-disclosure agreement, or NDA, as a condition of settlement is problematic.
Sex Discrimination Commissioner Kate Jenkins has called for an end to NDAs.Credit:Jessica Hromas
The fact that research shows the individuals who make complaints of sexual harassment are almost always doing so genuinely and without making allegations vexatiously is not enough to support the position that respondents who are named and shamed deserve all that comes to them.
Most of the sexual harassment matters that we act in do not involve a Harvey Weinstein or Roger Ailes-style villain. Allegations are often disputed and interactions are viewed differently by the parties involved and emotions tend to run high. Further, while the statistics show us that vexatious complaints of sexual harassment are very rare, bullying matters are different.
In our experience, and as reflected in the observations of the former deputy president of the Fair Work Commission, Peter Sams, in a number of cases it is the complainant that is, in fact, the bully, leveraging the process to impose further distress on victims.
Giving actual bullies a further free-kick to double down on the impact of unmeritorious claims by refusing consent for a NDA will compound the negative impact on the people in that process that do not deserve to be there. Any position taken about the prohibition or enforceability of NDAs must accordingly be segregated along jurisdictional lines.
In most disputes about bullying or sexual harassment there is a common desire to seek resolution with minimal disruption to the careers and damage to the reputation of all stakeholders – employers and employees included. Most do not want media scrutiny. Most want confidentiality and privacy, which can be achieved with an NDA, which is often a two-way agreement.
Banning silence will not achieve these ends and would, in fact, stifle prompt and (comparatively) painless resolution of complaints and, importantly, fast access to compensation.
Sexual harassment and bullying cases are not big dollar value claims, but employers are frequently prepared to be generous early for an economically efficient outcome. This is understandable given the cost to an employer for an investigation can be between $20,000 to $50,000, and defending formal proceedings much higher.
A ban on victims selling their silence will have unintended consequences
Source: Philippines Alive
