NDAs: Global campaign forces legislative change to stop abuse and cover-ups

Ruth Green, IBA Multimedia JournalistTuesday 14 September 2021

The #MeToo movement exposed how gagging clauses have, for decades, silenced victims of sexual crimes and workplace misconduct. Until recently, calls for stronger legal protections for employees had resulted in scant reform.

But, on 30 August, California paved the way by passing the Silenced No More Act, which prohibits the use of non-disclosure agreements (NDAs) and non-disparagement clauses in severance agreements. It builds on enhanced employee protections introduced by the state in the wake of #MeToo. The legislation is expected to increase pressure on Silicon Valley’s tech sector, which is already facing considerable pushback against its use of NDAs and mandatory arbitration clauses.

Many tech companies have European headquarters in Ireland, where an amendment to the country’s Employment Equality Act reached the critical third stage in the Seanad, Ireland's second chamber, on 14 June. The private member’s bill proposed by independent Senator Lynn Ruane is intended to increase workplace protections across many sectors in Ireland and inspire other jurisdictions to follow suit.

‘There’s a number of different ways that this has affected people in Ireland and it’s still very much in the public consciousness, from the waivers of the Magdalene laundries to the institutional schools and survivors of the Stardust tragedy,’ Ruane tells Global Insight. ‘This amendment will be a game changer and hopefully will open up safer spaces for people to reduce the amount of abuse or at least the prevalence of covering it up.’

A spokesperson for The Law Society for Ireland said it welcomed the proposals and was ‘especially pleased that Ireland is demonstrating leadership to seek to protect the rights of victims of workplace sexual harassment and discrimination by considering this amendment.’

Aoife Bradley is a Diversity and Inclusion Officer on the IBA Employment and Industrial Relations Law Committee and a partner at LK Shields Solicitors in Dublin. She agrees the amendment is a positive step, but stresses that it will require further consideration to ensure NDAs don’t become ‘totally unworkable even when the employee has requested them.’ She says this could risk increasing legal proceedings, which could be prejudicial both to employees and employers.

This amendment will be a game-changer and hopefully will open up safer spaces for people to reduce the amount of abuse or at least the prevalence of covering it up

Senator Lynn Ruane
Seanad Éireann

The Department of Equality has commissioned Ruane and her team to conduct further research into the use and prevalence of NDAs in Ireland. She’s hopeful that the amendment, which has received cross-party support, will move to the Dáil,​​​​​​​ Ireland's principal chamber, to be discussed at the Committee Stage by the end of January – one of the final hurdles before it can be passed and signed into law. The Irish government is also conducting a separate review of Ireland’s Equality Acts that will examine how NDAs have been used by employers in cases of sexual harassment and discrimination, and will include a public consultation.

The US and Ireland aren’t the only jurisdictions putting NDA reform back on the agenda. In Canada, Lynne Lund, a Green Party Member of the Legislative Assembly of Prince Edward Island, is pushing for the province to lead the charge in introducing legislation that would give victims of sexual misconduct the right to speak out even if they have previously signed an NDA.

Julie MacFarlane, a Distinguished University Professor Emerita at the University of Windsor, has been involved in drafting both the Irish and Canadian legislation and says Independent Manitoba Senator Marilou McPhedran is poised to propose legislation modelled on Ireland’s amendment after the federal elections later this month.

MacFarlane, herself a survivor of clerical abuse, has spoken out about allegations of sexual harassment and predatory relationships in Canadian universities. These experiences have convinced her that NDAs do not belong in the workplace. ‘Lawyers are there to try to protect people and try to redress misconduct,’ she says. ‘Covering it up and passing it somewhere else is not redressing it.’

Baroness Helena Kennedy, Director of the IBA Human Rights Institute, says victims should be allowed to maintain anonymity even in cases of sexual transgression, but agrees that NDAs should never be used to obstruct justice in criminal matters. ‘Lawyers should play no part in covering up abuses of power in working situations and it should be a disciplinary offence to cover up criminal conduct such as sexual assault, rape and threatening behaviour.’

MacFarlane says there’s still too little understanding, either in the legal profession or wider society, of the psychological impact of being under an NDA. Someone who knows this all too well is Zelda Perkins, the former assistant to Harvey Weinstein who broke her NDA in 2017 to speak out about the film producer’s sexual transgressions. She and MacFarlane have joined forces to launch a global crowdfunding and public awareness campaign – Can’t Buy My Silence – on 14 September, which will collate anonymised testimonies and create a toolkit to help ‘demystify’ NDAs.

‘The absolute aim of the campaign is still very much to change legislation and regulation,’ says Perkins. ‘It's so exciting that we've got Ireland and Canada already willing to start pushing this forward. To me, that's the only way that we're really going to make a difference. The more international pressure and the more change elsewhere, the more we can keep the conversation going everywhere.’

Perkins has been advocating for the UK to reform NDAs. In 2019, the government vowed to grant workers greater legal protections against the misuse of confidentiality agreements after a House of Commons Women and Equalities Committee called on Parliament to clean up the use of NDAs. No legislation has been introduced, but on 14 September the Committee’s former chair, Maria Miller MP, pushed for action in Westminster by introducing a Ten-Minute Rule Bill on NDAs in Parliament. She says NDAs could be ‘catastrophically damaging’ if used unethically and she wanted to stop them being ‘used as safety nets for employers to routinely cover up abuses without consequence.’

Georgina Calvert-Lee leads the UK employment and equality team at McCallister Olivarius and consulted on the Irish bill. She hopes Ireland’s progress will put NDAs back on the agenda in the UK. ‘I have to say it's been easier to push back on NDAs, so there's been a little bit of movement in the legal profession,’ she says. ‘But over time, if nothing more is done and if nothing is enshrined in law, we're just going to lose even that slight benefit. Unless you get on top of them, you're not really going to help improve the workplace.’

Image: Kim Hyeon Jeong C / Shutterstock.com

Download the IBA Global Insight app

Access expert analysis on international rule of law, business and human rights