Non-Disclosure Agreements (NDAs) prohibit victim-survivors of sexual harassment from speaking out about their experience.
This means they can’t seek support from friends, family, co-workers and healthcare professionals long after the incident occurred. Many victim-survivors say NDAs do more long-term harm than the sexual harassment itself.
“If my case were to happen to me today, I have become a strong enough woman that I would refuse to sign anything that would silence me.”
*Anonymous survey participant, VTHC Report
#LetHerSpeak
You might be familiar with Grace Tame’s story, and her campaign, Let Her Speak. Although her situation is quite different, Tame’s story helps us understand the burden and injustice that comes with forced silence that prevents victim-survivors from telling their own story.
NDAs are standard and often non-negotiable
NDAs have become a common condition of settlement in workplace sexual harassment cases. Victim-survivors say an NDA is presented as a condition of settlement – if you want to resolve the issue or your payout, you must agree to silence.
You might think it’s fair when a victim-survivor wants privacy – and you would be right. But unfortunately, an NDA is used much more often to protect an employer’s reputation at the expense of their employees’ wellbeing.
“No amount of money will ever be worth the ongoing trauma, fear and anxiety I experience regularly with no avenue to ever get closure.”
NDAs harm workers and allow sexual harassment to continue
The flow-on effect of this silence is that perpetrators often don’t experience any consequences, while victim-survivors experience negative mental health and are often forced out of their jobs.
An NDA can stay with the victim-survivor decades after the incident occurred. NDAs also create a culture of silence around sexual harassment in workplaces – and in the community.
A culture of silence goes against recent workplace reforms
The forced secrecy around sexual harassment goes against recent reforms that union members have fought so hard for over many years.
The Positive Duty (introduced federally in 2022), for example, makes employers responsible for preventing – not just responding – to workplace sexual harassment. Silencing any talk around sexual harassment means perpetrators can continue to harass because their victims cannot talk about past behaviour.
“[An NDA] essentially allows for the cover up or hiding of illegal and harmful behaviour.”
It also goes against more general efforts that unions have fought for – and won – to improve transparency and accountability, such as the prohibition of pay secrecy and the requirement for companies to publish gender pay gap data.
Secrecy is rarely a good thing. We cannot deal with a problem or risk, if we’re not even allowed to speak about it.
When we come together, it’s easier to speak out
Our own UWU members at Perfection Fresh found a way to speak out about their experiences, in spite of legal and cultural barriers. Their experience of sexual harassment threatened their job security, and as migrant workers, they were especially vulnerable.
Their story shows that supporting one another and being open about working conditions is what’s needed to address workplace concerns and make employers truly accountable for the mental health and safety of their employees.
So, what’s being done about NDAs?
Following a campaign initiated by unions in Victoria, and inspired by proposed law reforms in Ireland in 2021 and globally since the #MeToo movement, an inquiry and consultation is now underway in Victoria.
Research by Victorian Trades Hall Council (VTHC), Victoria’s peak union body, found that 95 per cent of people surveyed regretted agreeing to an NDA, sometimes for decades after the fact.
Carolyn Dunbar, VTHC Women’s Team Lead, says it’s time for employers to take workers seriously on this issue.
“This has only been possible because union women have come together, shared their stories and taken action to say enough is enough.
“Sexual harassment isn’t an individual’s issue, it’s everyone’s problem.
“It’s time that employers are held accountable for stopping it. Workers and survivors of harassment should be free to talk about their experiences and be empowered to fight for safer workplaces”
The VTHC inquiry has found that, in spite of being silenced, victim-survivors were very keen to share their experiences anonymously.
“There was no negotiation. If I wanted to leave with the money, I had to sign. The guy in my case was well known for his behaviour.”
The VTHC proposal seeks to end the use of NDAs in workplace sexual harassment cases, unless the victim-survivor requests one.
If this union campaign is successful, it will be a nation-leading reform and one of the only places in the world to do it. This will be an example for other states to follow. They are watching closely.
Ireland successfully outlawed Non-Disclosure Agreements in 2021
The proposal by the Victorian Trades Hall Council follows the amendment to the Irish Employment Equality Bill (2021), and is aiming for the following reforms:
1. Substantially reduce the use of NDAs in sexual harassment matters
2. Prohibit NDAs unless the victim-survivor requests one (for their own privacy)
3. Where an NDA is agreed to, the victim-survivor can opt-out at any time with 7-days notice
More voices will encourage others to speak out
Recent workplace reforms such as the Positive Duty are welcome and will go a long way in reducing workplace sexual harassment.
But, until we are able to speak freely and know the true extent of sexual harassment from the experience of victim-survivors, we will not eliminate sexual harassment.
A key to reducing sexual harassment, which is a major mental health issue and a barrier to women’s career progression, is through joining together to tell our stories and being allowed to support one another in doing so.
If you haven’t done so already, joining your union is the best way to support and be supported by your co-workers.
Ending NDAs to allow openness and mutual support among co-workers is an important step forward in the fight against workplace sexual harassment and for safety and respect for all workers.
Our expert guide on how to prevent and respond to workplace sexual harassment is free for members. Download here.
