4 dangerous and misleading myths about NDAs

As I continue to speak out about the evil of non-disclosure agreements that allow known bullies, harassers, racists and rapists to be moved secretly on to another workplace (known as “pass-the-trash”), I have started to recognize some repetitive “talking points” lawyers and employers use to justify their widespread use of NDAs.

These myths are insidious because they are inaccurate and untrue. They are widely accepted however by members of the public — especially if they come from a lawyer who is seen as “knowing more” than they do — and often forced on clients who are victims by their own lawyers.

This blog sets out four of the most prevalent of these myths that I hear over and over from those who wish to protect the status quo, the way “we always do things”, and the interests of the employer and/or perpetrator.

These explanations do not require special legal knowledge — just common sense. Please read on.

Myth 1

All victims really want confidentiality, and if you don’t accept this you cannot be sympathetic towards victims. Not everyone wants to go public!

The reality

Victims sometimes want confidentiality. No one is expected or needs to go public unless they want to (this is so obvious it seems lame to even say so). Other victims do not need or want confidentiality, but they are always assumed to by lawyers who claim “special knowledge”.

At most confidentiality should be waivable at the victim’s request — their feelings may (and often do) change after the settlement.

In contrast, employers and perpetrators always want confidentiality to protect their reputations. The interests of employers and perpetrators are perfectly aligned here. The perpetrator wants secrecy so they can get another job. The employer wants secrecy because by the time a perpetrator is disciplined it has usually taken years or even decades (yes!) of complaints for this to happen.

So why the gap?

If confidentiality were waivable by the victim — which seems an obvious solution to allow each individual victim to decide what information they want to stay private and what they want to speak about — employers, institutions and corporations would have no control over their future disclosures.

Myth 2

Lawyers talk about NDAs as if confidentiality must go both ways — that if they are going to be able to protect the victim’s identity, they must also agree to say nothing about the identity of the perpetrator or the circumstances in the workplace and what it took to bring the perpetrator to account.

The reality

This is inaccurate and at best misleading. A confidentiality agreement, just like any agreement, can be for the protection of one side with the agreement of both. It is the agreement of both that is important — it doesn’t have to be the same deal for both sides. Offering one side $10,000 dollars doesn’t mean the other side has to be offered the same — obviously. It’s called negotiation.

Why the gap?

The institution/ employer/ senior employee is always the more powerful party in these negotiations and has a lot more resources than the victim. This obfuscation is in their interests. Furthermore, the lawyer for the victim — if she can afford a lawyer — prefers a reasonable settlement to an uncertain trial outcome to ensure a financial return if they are acting on contingency (taking a percentage of the settlement). This always means pressure on plaintiffs towards settlement unless the offer is really terrible. As a mediator and a researcher, I have seen first-hand this many times and have written about it, along with many others.

Myth 3

Victims should be encouraged to sign an NDA in order to “move on with their lives” (a classic buzz phrase)

The reality

Victims live with the sword of Damocles hanging over them, terrified they are being watched and could go to jail for breach of the NDA. As people who have signed NDAs tell me over and over, this is the opposite of “moving on”.

Why the gap?

The language of “moving on” makes the lawyers sound sympathetic to the victim/ survivor but it is used cynically and to further their own interests. It’s also possible they just genuinely don’t get it.

Myth 4

“Victims rights” trump any other public interest or third party concern, that is, the rights of anyone who might be (and often is) hurt in the future by the known perpetrator

The reality

No one person should have the right to expose another group of people to a known risk or threat. This is a public interest issue.

Why the gap?

Lawyers represent individual clients (victims, employers, perpetrators) not third parties. So, they have no commercial interest in advocating for third parties.

I have been a law professor for 40 years, and I know that some legal issues are really complicated. I understand deferring to a lawyer on some matters if you do not have legal training.

But quite honestly — this issue is really not that complicated. What is preventing the public fully understanding and calling out these myths is deference to lawyers that gives them far too much self-interested power here.

If you have read the above, you now understand this. The rest is myth, designed to shore up the interests of those who want to push NDAs on victims of workplace harassment bullying and violence.

These myths need to be called out. Please help me to do this. I am working with Zelda Perkins — the first brave woman to stand up and break a Harvey Weinstein NDA — and allies in many countries to bring an end to this disgusting practice. Please get in touch if you would like to help, or if you have signed an NDA and want out.

julie@profjuliemac.com