A University of Sydney report has revealed that non-disclosure agreements (NDAs) have the potential to be counter-productive and harmful in out-of-court sexual harassment cases.
Authors, from the Sydney Law School, set out to find how sexual harassment practitioners were resolving out-of-court sexual harassment settlements and how they approached confidentiality terms.
The Respect@Work report identified that NDAs, being confidentiality and non-disparagement obligations, were widespread and likely to be harmful and counter-productive by silencing victim survivors and concealing the behaviour of harassers.
Recommendation 38 of the report recognised the need for guidelines identifying best practice principles for NDA use. A key feature of these guidelines was to do away with the long-standing assumption that NDAs should be the starting point in every case and move to a more individualised approach.
Nearly one year after they were published, the researchers investigated the impact of the Respect@Work Council confidentiality guidelines by conducting quantitative and qualitative research with Australian legal practitioners. They examined how other countries have addressed the misuse of NDAs in sexual harassment matters, both by legislative reform and by reframing this as a legal professional conduct issue to consider sexual harassment prevention as an environmental, social and corporate governance obligation.
Researchers also found that broad and exhaustive NDAs (being blanket confidentiality and non-disparagement terms) remain the default confidentiality term used by lawyers in workplace sexual harassment settlements in Australia. And this practice persists despite a suite of reforms to Australia’s sexual harassment landscape since the global #MeToo movement.