This blog is the beginning of several I shall be posting on the insidious nature of non-disclosure agreements — or NDAs as they are known — which are very commonly used when an employee is terminated for sexual harassment or other sexual misconduct.
An NDA allows both the employer and the terminated employee to escape public scrutiny, because it binds the parties to confidentiality about both the fact of and the reasons for the termination. It facilitates “passing-the-trash” — a prospective new employer will be given no information about the past behavior of the individual they are now considering hiring.
Like growing numbers of people, I believe that offering NDAs to employees terminated for sexual misconduct are completely immoral. And as case law is increasingly suggesting, unenforceable. In particular, NDAs are probably unenforceable in a public education context where student safety is at issue: more on this in next week’s blog.
In some instances, victims are also asked to sign. This is framed as protecting their anonymity — but in actuality it is a gag order. The protection of victim identity via an undertaking of anonymity for them can be achieved in a simple clause in an agreement. It does not require a promise by the victim to never to speak about the matter themselves. This false framing has been exposed by recent cases (examples here and here) in which the victim has spoken up in breach of the NDA because they saw their perpetrator getting away with further abuse.
Both the Anglican and the Catholic churches are ubiquitous for regularly moving priests and ministers known to be abusive to new locations where they continue their predatory behavior. More and more examples of this strategy are being exposed, from the movie “Spotlight” focusing on the Catholic diocese of Boston to the ongoing Independent Inquiry into Institutionalized Child Abuse in the UK.
But it is not just the churches who use this strategy to move abusers and harassers around and hide their behaviour from scrutiny. Universities use NDAs to pass problematic and disgraced faculty on to other institutions. There could be a formal investigation, clear evidence of sexual misconduct, and the consequent termination of a faculty member, but an NDA will rub out all of that — the faculty member could still be hired at another university and once again be in a position of authority to engage in the exact same behaviour. This scenario is more common than you might realize, and I am in the middle of a personal nightmare as a result.
My NDA story
In late 2013, I became aware that a tenured faculty member at my law school was sexually harassing and intimidating law students while building a cult of “favouritism”. It became clear from students and graduates that this behaviour had been going on for many years.
A delegation of students and faculty, myself included, went to the administration and 5 faculty members formally requested the University to act. An internal investigation of this individual followed, and almost a year later he was terminated for misconduct including sexual harassment. The University of Windsor has a collective agreement, and the faculty member brought a grievance against his former employer; in 2015 the university settled with him to avoid costly arbitration. To sweeten the deal, they gave my former colleague a non-disclosure agreement which the faculty association (WUFA) also signed on to.
The NDA made it was possible for this individual to go on to obtain employment in another law school in Trinidad. When I learned of this, I was connected by colleagues to the Dean at this school. I informed him of the circumstances of my former colleague’s departure from Windsor. He told me in that telephone conversation that he had wondered about why the applicant would have left a tenured position, and had reached out to the UW administration for further information. He received no response. He had gone ahead and made the hire.
Ever since, I have been lobbying UWindsor to stop offering such deals to employees terminated for sexual misconduct. For almost a year, the administration refused to engage with me at all on this issue, citing the NDA as a reason to not have any discussions at all about future policy (note: this is NOT what an NDA means). In order to place pressure on them to begin talking about it, in 2017 I spoke to the CBC.
The CBC story “worked” — it forced the administration to engage seriously with me over future NDA policy. Last year we made some good progress, and as of last November, we were closing in on an agreed draft of a future policy. There are still many steps ahead — it will be critical to get the union on board — but there was some momentum, including a legal memo on the dubious legal enforceability of NDAs (to be discussed in next week’s blog).
Then in December, as I was recovering from surgery at home, I received a letter-before action from a lawyer who said he was representing my former colleague. The letter threatened to sue me for defamation in Trinidad — where my former colleague is trying to set up a law practice — unless I made an undertaking not to speak about what I knew to be true about this individual ever again, to anyone, and to retract what I had already said. Obviously I could not agree to this, since everything I have said is true (and the university and the union know it of course).
I was formally served a few weeks later and am now a defendant in a “defamation” suit. Of course I notified my university employer as soon I was first sent the letter-before-action and again when I was served. The response has been effective abandonment by my university employer of 25 years and also my union, both of whom of course signed the NDA. As yet, neither will offer me any legal assistance, or even collegial support. The university has forwarded a query on coverage to their insurer, where it has sat for weeks. I have just over a week left before a default judgment can be issued against me in Trinidad if I do not defend.
I have an amazing team of legal minds and supporters — most of them Windsor alums — working with me to confront the university and raise awareness on this issue. Foremost in our minds is ending the use of NDAs for sexual misconduct terminations.
If you are concerned about this issue, there are a number of things you can do:
· Use social media to draw attention to the NDA scandal, and my case as a whistleblower. Use the existing hashtags #NDAs and #whistleblower.
· We are starting a new hashtag, #DontGambleWithGags, for students and faculty to tweet at their universities (and if you think your university does not use NDAs — go check! This practice is more common than you might think).
· Write to the Acting President at the University of Windsor, Douglas Kneale, telling him what you think of the university’s handling of this case and treatment of me.
· If you are a university professor, please write to your administration and faculty association telling them “not in my name” and urging them to stop giving NDAs to sexual predators.