Lynn Ruane NDAs have been misused as a tool to enforce a culture of silence - this has to stop

LAST UPDATE | 20 Oct 2023

NON-DISCLOSURE AGREEMENTS, or ‘NDAs’, are legally binding instruments initially developed to protect industry and trade secrets.

But when we refer to NDAs in contemporary life, we, more often than not, are speaking about confidentiality agreements that have become the default mechanism by which sexual misconduct, abuse, harassment and other rights violations are settled.

The widespread misuse of NDAs came to the fore during the #MeToo movement, which highlighted the extent to which people had been subject to sexual assault and harassment in their lives, but also notably in their places of work. A key moment in the #MeToo campaign came when Zelda Perkins, a former assistant to Harvey Weinstein, broke the terms of an NDA she had signed many years prior with the Hollywood film producer. In doing so, Zelda brought the systematic abuse of NDAs to greater public attention, ultimately uncovering an epidemic of misuse.

Silencing dissent

I first became aware of NDAs when several people I know shared their experience of signing an agreement. I was horrified to learn that a mechanism that had been designed to prevent the disclosure of trade secrets was being used to silence victims of abuse and harassment, ultimately protecting and emboldening the perpetrators of that very same behaviour. When I first spoke publicly about my concern regarding the misuse of NDAs, it became apparent just how widely these agreements were being misused here in Ireland.

My office received representation after representation outlining situations where employees had been coerced into signing these agreements by their employer, most often in instances of bullying or harassment.

A concerning trend that I noted was the number of NDAs signed by individuals who had endured intense bullying at work, but only after it became known by their employer that they had reported various incidents using Ireland’s Protected Disclosures Act.

One NDA that was shared with my office went as far as having a clause inserted in it which provided that the individual, after receiving a settlement in return for signing the NDA, would no longer be protected by the Act.

Over the years, I was also contacted by several legal professionals expressing their concern regarding the obligation on them to use NDAs as part of their work. One solicitor pointed to the role occasionally played by trade unions in negotiations where NDAs are presented as a solution to workplace harassment, discrimination or bullying. These legal documents don’t always take the form of a traditional NDA but instead can be a contract between two parties associated with a potential severance agreement, within the body of which an NDA is concealed.

It is understood that these agreements are used widely throughout the technology industry and other major players in the private sector internationally, with reporting by the New York Times referring to their being thrown around in the industry like confetti. Not every NDA is used for nefarious purposes, but their use in high-profile scandals within the tech industry is well demonstrated. Given the presence of a large number of multinational tech companies here in Ireland, would it be naive of us to presume that they aren’t engaged in this problematic behaviour?

Culture of fear

Notwithstanding all of the high-profile coverage about NDAs in the years since the #MeToo movement, the extent of their use remains a hidden issue because people are so fearful about speaking out. In response to engagement with my office on problem NDA use in Ireland, Minister Roderic O’Gorman commissioned the Department of Children, Equality, Disability, Integration and Youth to undertake desk-based research on the prevalence of NDAs in Ireland. The research report found that NDAs are commonly used in various contexts in Ireland; however, the patterns of their use in cases of sexual harassment and discrimination are difficult to identify due to their inherent lack of transparency.

From my research, it is clear that people often feel they have no other option but to sign an agreement; they just want to get away from their harasser or abuser, the organisation that might have overlooked the problematic behaviour and ultimately, the months or years of bullying or sexual harassment they might have endured.

When offered the NDA, they see it as the only way to move on.

However, as with many things, distance changes everything. One individual that I have worked with over several years has advised of the fact that he lost his voice in signing an NDA and feels that he can’t get it back without breaking the terms of the agreement and, thus, opening himself up to legal action.

There is a term known within the industry as “passing the trash”, whereby employers off-load a problematic employee onto another firm or employer under the guise of an NDA. In this instance, an NDA might include a provision that mandates an employer give a departing problematic employee a glowing reference to facilitate their leaving the relevant company. In doing so, the NDA facilitates a perpetrator of abuse and harassment moving to another place of work, where their behaviour can continue without oversight or accountability. This outrageously ignores NDAs’ impact on those who aren’t even party to the agreement, the safety and well-being of third parties, and the facilitation of patterns of abuse. It is short-sighted and immoral.

Acceptable in some instances

There are scenarios where a legal NDA will always be required; trade secrets may need to be protected, and intellectual property may need certain legal protections and guarantees. Victims of abuse or harassment may, themselves, seek out an NDA as part of a settlement agreement, and they should be facilitated to do so if this is their express wish. However, there should never be a scenario where we as a society choose to protect the professional reputation of a perpetrator or the organisation they work within, as opposed to seeking accountability and safety for victims of abuse and harassment.

Creating legal frameworks to silence employees and, in some cases, to cover up potential crimes is appalling, particularly given how extensive Ireland’s documented history of the shaming and stigmatisation of victims is.

After a number of years teasing out different solutions to the problem of NDA misuse, my office and Julie Macfarlane, the author of Going Public: A Survivor’s Journey from Grief to Action and a distinguished Professor Emerita of Law at the University of Windsor, drafted a legislative solution in the form of the Employment Equality (Amendment) (Non-Disclosure Agreement) Bill 2021. This Bill proposes all-but-banning the use of NDAs in instances of abuse and harassment in the workplace, ending the silencing and shaming of victims and survivors.

The Bill has, to date, received cross-party and Government support throughout each of its legislative stages in Seanad Éireann. It is proposed that the Bill will be read and considered a final time in the Seanad next Wednesday, the 25 October, following which, with the continued support of colleagues in Government, the Bill can proceed on its legislative journey through Dáil Éireann. While domestic legislative progress has been slower than I might have hoped, the Bill has already had a significant impact in the international arena, with several other common law jurisdictions having transposed and enacted the Bill.

In 2022, Prince Edward Island enacted a version of the Irish bill, drafted by my office, while Nova Scotia and Manitoba have introduced similar bills that stand at varying stages of the legislative process. In March of this year, the leader of the Green Party in British Columbia also introduced legislation modelled on my Bill. The last 12 months have also seen our closest neighbour pass an amendment to ban the use of NDAs in the University Sector, while further afield in the United States, Congress successfully passed and enacted legislation to prevent the enforcement of NDAs in instances of sexual assault and harassment.

Professor McFarlane and Zelda Perkins have been instrumental in achieving this progress through their formidable Can’t Buy My Silence campaign. Without their dedication, the conversation wouldn’t be where it is today.

What this progress demonstrates to me is that it is possible to find consensus on this issue and that it can be addressed through legislative means. Ireland first set the stage for legislative action through the Employment Equality (Amendment) (Non-Disclosure Agreement) Bill in 2021, and I hope that next week, with the continued support of the Government, it will begin to bring down the curtain on the silencing and shaming of victims of abuse and harassment in Irish workplaces.

Lynn Ruane is an independent senator. Lynn is hosting an event next Tuesday – Maykay in conversation with Zelda Perkins, the activist who broke the Harvey Weinstein NDA – in Dublin. Details here.