5 Reasons to Reject NDAs
I continue to be the subject of a defamation law suit (in Trinidad) and my employer (the University of Windsor) continues to refuse to defend me for giving a truthful professional reference about a faculty member fired for sexual and other misconduct.
I want to use this blog to highlight how my legal case exposes all the fault lines in the widespread use of NDAs (non-disclosure agreements).
1. NDAs give additional bargaining power to sexual predators (compared to individuals terminated for other reasons)
Most of us, if we are terminated from our employment, must go out and take our chances with getting a new job. I have mediated hundreds of such cases. Some of those reading this blog will have faced this situation. At best it’s awkward, even if we were laid off or not renewed for economic reasons. “Why us?” is a question we have to explain at job interviews. At worst, we may have to explain “just cause” termination that could disqualify us from the next job — for example, dishonesty, or simply poor or inadequate performance.
However if you are a sexual predator, there is another option available to you (and you don’t have to be an intrinsically powerful person like Harvey Weinstein, although it helps). It’s called an NDA.
Your former employer will give you this because the current dynamics of negotiating the departure of a sexual predator make you powerful. First, terminated sexual predators are powerful because employers want to avoid the high cost of litigation over the termination — because sexual predation is notoriously hard to prove at an evidentiary level without multiple victims being willing to testify, a rare occurrence.
Second, someone fired for sexual misconduct has power because their employer will want to hide the shame of having employed them at all (especially given how long it usually takes for the employer to take decisive action and issues of safety for co-workers and others). Employing a sexual predator does not look good for investors, alumni, congregants or others. The dirty secret here is that someone fired for sexual misconduct and their (former) employer have a shared goal. Covering it up is in both their interests.
2. NDAs are used to gag victims
Some (not all) NDAs provide a confidentiality guarantee for the victim(s).
But are NDAs that include victims good? No.
- Such NDAs restrain victims from speaking about their own experience, when they are ready to do so.
- An NDA means that nothing changes in that workplace because the sexual misconduct that led to the termination cannot be talked about.
- Victims are often pressured to sign NDAs without realiing what they might mean for them.
Victims do not need the “protection” of an NDA. The anonymity of a victim can be taken care of with a simple confidentiality clause, that does not bind them (or anyone else) for all eternity. Unlike an NDA, a confidentiality clause protects their identity for as long as they want to be protected, instead of gagging them.
3. NDAs enable employers to “pass-the-trash” to another workplace
NDAs enable a known sexual harasser or someone who has sexually assaulted or raped someone in their workplace to move to a new job, hiding the real circumstances of their “departure”.
An NDA (technically: this is under serious challenge in case law) absolves an employer from responding truthfully and honestly to reference requests and direct questions about the circumstances of the predator’s departure.
4. NDAs mean that co-workers must dissemble and even tell outright lies — or risk being left to defend a law suit alone
Where there is an NDA, a co-worker — even where they do not sign that agreement, like me — may find it becomes dangerous to tell the truth about the termination of a sexual predator.
In my case, it got me sued for telling the truth. My employer (the University of Windsor) will not defend me for responding truthfully to a request for a professional character reference because they pretend that the terminated employee simply “chose to leave”, or that there was “an amicable parting of the ways.” The employer who is a party to an NDA continues to perpetuate what they and everyone else knows to be a fiction.
5. NDAs chill the climate for anyone speaking up about sexual violence
In the wake of the #MeToo movement, there are signs of some greater willingness to speak up and to identify sexual predators. There is (some) more pressure on employers to investigate and take such complaints seriously (there are still not enough effective and victim-sensitive procedures, but that is for another blog).
The counter-punch is the NDA.
Be assured, when the powerful begin to see the tide turning against them, they (and their lawyers) will come up with a new device to restore their control. NDAs are that vehicle.
They are in the interests of only two parties — the person fired for sexual misconduct and their employer. They serve no other purpose.
A similar power move is the use of defamation suits to silence accusers even in the absence of an NDA. In Canadian universities alone, there are presently more than 20 people — students, faculty and others, all but one a woman — being sued for “defamation” by the individuals they have spoken up against. These include young students, graduate students, and faculty both junior and senior.
For each of us, the stress is difficult to manage, and especially in the absence of support from our university.
For some, that stress and pressure is simply unmanageable. We do not know how many have settled defamation suits brought against them by those they accuse by signing ……yes, you got it……an NDA.
We have to stop this madness. Tell your employer, tell your union, “not in my name” — no more NDAs for sexual predators.