As she was returning from a break,she got in a lift with a male manager. Within seconds,he had cornered her,put his hand between her legs,groped her breast and tried to kiss her,she said.
Annie* said her boss asked her to sign a non-disclosure agreement when she made a sexual harassment complaint.Chris Hopkins
More than a decade later,her shock is still palpable. “I left there feeling violated,” she said. But what happened next sent further reverberations through Annie’s life.
Days after reporting the alleged assault to senior management with the assistance of a supportive female manager,who was also a union delegate,she said she was called into a meeting without her.
A senior manager handed her a piece of paper and asked her to “sign this for me”.
He explained that she would be agreeing “that you won’t talk about this with your work colleagues” and “the whole process will remain confidential”,Annie said.
“What I’d actually just signed was a non-disclosure agreement,” Annie said. She didn’t realise it would be “a gag order for the rest of my life”.
Annie said she was not offered compensation or support,and was told she could not be updated about the workplace investigation because of the agreement. “It was treated as if it never happened”,she said.
The manager behind the alleged assault later resigned.
Annie,now in her 40s,said she had “effectively spent one quarter of my existence too terrified” to tell her story.
NDA use ‘entrenched’
In a titledLet’s talk about confidentiality,launched on Wednesday,lawyers and social justice practitioners-in-residence at the University of Sydney,Regina Featherstone and Sharmilla Bargon,examined the use of non-disclosure agreements (NDAs) in sexual harassment cases.
‘We continue to know very little about what is happening with sexual harassment in our workplaces.’
Lawyers Regina Featherstone and Sharmilla Bargon
The authors surveyed 145 Australian lawyers working on harassment cases about the prevalence of non-disclosure agreements and found approximately 75 per cent had “never resolved a sexual harassment complaint without a strict NDA”.
This included 69.3 per cent of the 75 lawyers surveyed who acted for applicants,or complainants,and 79.24 per cent of the 70 lawyers surveyed who acted for respondents,or employers.
“This 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,” Featherstone and Bargon said.
Many of those surveyed considered the agreements standard practice,the report said,and NDA use was now “so entrenched that many practitioners do not advise of the option of not having one”.
While the authors noted a complainant may seek an NDA for a variety of reasons including “to avoid the stress and possible costs risk of initiating court proceedings”,they said their use became “concerning when it is adopted as a blanket,standard agreement,and victim-survivors are denied true choice”.
“The misuse of NDAs is exemplified by former film producer Harvey Weinstein,who,in 2017,told journalists he had settled ‘less than ten’ harassment claims against him,” the report said.
“These agreements were not public,so each complainant settled their claim with Harvey Weinstein without knowing about the others.”
The report comes amid to restrict,but not ban,the use of NDAs in sexual harassment cases. The issue also shot to prominence last year in the United States after two former Fox News hosts who reportedly signed NDAs lobbied for changes to the law.
NDAs may have benefits
Featherstone and Bargon’s research follows the Australian Human Rights Commission’s,Respect@Work,released in 2020.
TheRespect@Work report noted settlements involving NDAs or confidentiality clauses were “a viable alternative to lengthy,adversarial and often public litigation”. They may also help a complainant negotiate higher compensation while maintaining their privacy.
However,the commission also heard that NDAs may serve to intimidate and silence victims.
The commission worked with the Workplace Sexual Harassment Council to develop non-binding best practice guidelines for the use of NDAs,,which state that NDAs “should not be seen as standard terms in workplace sexual harassment settlement agreements”.
The six-point guidelines include that the complainant should have access to independent support or advice,and the scope and duration of the agreement should be as limited as possible.
But Featherstone and Bargon said their research showed the guidelines “have had limited effect in addressing the misuse of NDAs”.
Complainants must have choice
Annie said she saw “a role for NDAs … in any situation where the victim-survivor is requesting it,not at the company’s insistence or the alleged perpetrator’s insistence”.
But she said they shouldn’t be lied to,or tricked into signing it.
It should be “their choice,never anybody else’s,” Annie said.
*name changed to protect her identity
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