Overuse of NDAs in sexual harassment cases in Australian workplaces
Let’s Talk About Confidentiality examines the use of NDAs in the context of sexual harassment in Australian workplaces. Regina Featherstone, Senior Lawyer at the Human Rights Law Centre, and Sharmilla Bargon, Senior Solicitor at the Redfern Legal Centre, authored the report at the Sydney Law School.
Rates of sexual harassment in Australian workplaces are high – one in three people have been sexually harassed in the last five years – with women experiencing rates much higher than men. What is perhaps less known is the impact of NDAs on these figures, as well as the conditions for their implementation and variety of forms they can take.
The use of NDAs to conceal sexual harassment and protect perpetrators is an internationally recognised problem.
The report sheds light on how the legal profession has responded to broader discussions on workplace sexual harassment and NDA use.
The report calls for a cultural shift in the legal profession so that lawyers are prepared to question their use of NDAs in sexual harassment settlements and empower clients with choice.
“It also calls for those that misuse their power be held accountable and not be protected by a culture of silence that enables impunity so that we can actually try to understand the sexual harassment epidemic problem with greater detail.”
Let’s Talk About Confidentiality draws on interviews and surveys with legal professionals.
“By conducting a survey of 145 sexual harassment legal practitioners across Australia, we found that approximately 75percent of the profession, being 69.3percent of applicant and 79.24percent of respondent lawyers, have never resolved a sexual harassment complaint without a strict NDA,” said Ms Bargon.
Many consider these clauses to be ‘standard’. The widespread use of strict NDAs means we continue to know very little about what is happening with sexual harassment in our workplaces and the impact of recent law reform in curbing perpetrator behaviour.
The report attempts to understand how lawyers advise clients on these matters. NDA use is so entrenched that many lawyers do not advise of the option to not have one: close to 30percent of applicant lawyers and 50percent of respondent lawyers have never provided this advice to clients. This may constitute a breach of professional legal obligations which require clear and timely advice so that clients can make informed choices in their instructions.
Featherstone and Bargon found that broad and exhaustive NDAs remain the default confidentiality term used by lawyers in workplace sexual harassment settlements in Australia.
This practice persists despite reforms to Australia’s sexual harassment landscape since the rise of the global #MeToo movement. NDAs can be beneficial for both parties, however the Respect@Work Report raised concerns about their widespread use and the impact they have on transparency. The Respect@Work Council issued the NDA Guidelines for workplace sexual harassment settlements in December 2022, urging NDAs to be used on a case-by-case basis.
“NDAs require parties to keep the details of the settlements — which often includes the alleged conduct and settlement amounts — confidential. In this report we examine the practice of using strict NDAs, being blanket confidentiality obligations – meaning that the victim survivor cannot speak to anyone about the incident(s). We did this to understand whether the NDA Guidelines have had any effect,” said Ms Bargon.
“Sexual harassment harms so many Australians and requires a collective response. Global movement and reform started the momentum on this topic and now we must continue to talk about confidentiality.”
This project was made possible by the Kim Santow Endowment.