Should Universities Be Using Non-Disclosure Agreements when Employees Are Terminated for Sexual Misconduct?

This blog is part of a series of posts I shall be making on how universities, including my own, are continuing to shield sexual predators with NDAs and move them on to other schools.

Guest blog by Jessica Proskos

Jessica is a third year law student at the University of Windsor, where she has completed a research project on the enforceability of non-disclosure agreements and their use by public sector institutions.

A non-disclosure agreement (“NDA”) is a contractual agreement whereby one or more parties agree not to disclose material or knowledge designated as confidential to third parties. The use of NDAs has been subject to recent public debate following a number of sexual assault scandals (think Harvey Weinstein, R Kelly and others).

A number of moral and ethical concerns arise when NDAs are used to conceal allegations or findings of sexual misconduct, preventing disclosure to prospective new employers and raising concerns relating to public safety. These concerns are particularly pressing in relation to educator misconduct, because of the power imbalance between the educator and the student.

It is recommended, for the following reasons, that universities in Canada ban the use of NDAs for educator sexual misconduct.

Silencing victims and neglecting their interests

Victims are not usually separately represented at the bargaining table when NDAs are being negotiated between the employer and the employee being terminated for sexual misconduct. This is highly problematic. While many victims want their identity protected, this can be achieved with a simple agreement to this effect — it does not require a clause that binds the employer never to reveal the real reason for the termination, and the victim never to speak about the matter.

Because NDAs in sexual misconduct cases allow perpetrators to “buy” (whether or not money changes hands, they are obligated to keep quiet) the silence of the parties, such agreements give perpetrators further power over their victims by preventing them from discussing allegations or findings of misconduct with others, resulting in significant psychological stress on victims to stay silent about their experiences.

Repeat offenders

NDAs may protect serial predators from detection. Evidence suggests (see cases and articles below) that educators who engage in sexual misconduct with students will continue to do so in the future. However, an NDA means that teachers investigated and terminated for sexual misconduct can subsequently obtain employment at new schools, where their employer is left completely in the dark regarding their prior misconduct.

Not only do NDAs shield offenders from further scrutiny, they inevitably enable future re-offending, putting more students at risk of harm.

Public policy and the duty of care to future students

The use of NDAs for educator sexual misconduct is particularly problematic, because such agreements may cause substantial harm to the public in breach of the university’s duty of care.

Case law has established that an educator’s decision to remain in the teaching profession undermines the validity of NDAs, because it exposes vulnerable individuals to unacceptable harm (see Bowman v Parma Board of Education).

A university owes a legal duty of care to protect students and the public against injuries that flow from the probable and foreseeable consequences of their actions (here, signing an NDA with an employee terminated for sexual misconduct). If a university has knowledge of alleged or actual sexual misconduct, the university will owe a legal duty of care — as well as a clear moral responsibility — to protect future students from reasonably foreseeable harm by that perpetrator.

There are a number of ongoing lawsuits brought by students against universities in the US stating that they failed to protect them from known predators. They include a case involving sexual harassment and assault by Dartmouth University professors, where the student plaintiffs claim the university knew about the professors’ behaviour for more than 16 years, but took no action to address it, a case against the University of Mary Washington for failing to protect them from anonymous online harassment amounting to sex discrimination, and a suit brought by a student against Lawrence University in Wisconsin claiming it showed “deliberate indifference” to a male student who sexually assaulted her, allowing him to remain on campus despite previous complaints filed against him. Expect to see more.

Case law also notes that this duty of care is present where the employer elects to make recommendations to third parties regarding the employee’s history. Full and accurate disclosure regarding employees with dangerous or questionable propensities promotes a safe work environment, and a safer society. For this reason, courts have tended to find in favour of free and open communication between past and prospective employers, finding NDAs relating to misconduct in the workplace are unenforceable on public policy grounds (see, for example, Bowman, Doe-3, Randi, Davis, Giannecchini).

Government action

In response to these concerns, government agencies in a number of jurisdictions have spoken out on the use of NDAs for sexual misconduct, strongly advising against their use.

In the United States

US state legislatures have been at the forefront of introducing legislation prohibiting NDAs:

• 16 states have now introduced formal legislation proscribing NDAs using a variety of approaches including banning agreements in cases of (eg) sexual misconduct, sexual harassment and discrimination, and limiting who can ask for an NDA (the claimant/victim and not the perpetrator)
• President Obama introduced an amendment to federal legislation (the Every Student Succeeds Act 2015) prohibiting school employees from assisting other school employees in obtaining new employment if that individual knows or has grounds to believe that the person has engaged in sexual misconduct with a student.

In the United Kingdom

• The Equality and Human Rights Commission (for England, Scotland and Wales) released a report in 2018 recommending a prohibition on NDAs for sexual misconduct. The Commission argued that the use of NDAs will reduce the likelihood that underlying issues relating to misconduct or inappropriate behaviour will be addressed in schools and universities. The Commission also recommended that confidentiality clauses for sexual misconduct should not be used in agreements in the public sector, including universities.
• The Women and Equalities Committee of the UK Parliament is holding an ongoing inquiry into the use of NDAs. In a 2018 report, the Committee has denounced the use of NDAs by employers and lawyers to cover up sexual misconduct.
• The government has introduced new legislation for England and Wales that would prohibit the use of NDAs to prevent complainants from reporting sexual misconduct to police. This is the consequence of concerns that NDAs are being misused to conceal harassment and discrimination and to intimidate whistleblowers, and is in response to one particularly public and egregious case involving Sir Philip Green.

In Canada

• In Canada, the Government of Ontario released “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment” in 2015. The Action Plan committed the government to introducing legislation strengthening existing provisions relating to sexual violence and harassment “in the workplace, on campus, in housing and through the civil claims process”. To achieve this objective on campuses, the Action Plan recommended that universities and colleges be required to report publicly on reported incidences of sexual violence.

It is entirely contrary to these recommendations to use an NDA when a public sector employee is terminated for sexual misconduct, as NDAs keep incidents of sexual violence confidential and prevent them from being reported publicly.

Why are universities still using NDAs?

Universities may offer an NDA when an employee is terminated for sexual misconduct in order to protect their own reputation, and to reduce the costs of litigation (an NDA may be a “sweetener” to encourage the employee to settle any ongoing litigation or grievance). However, focusing on economic costs and reputation management fails to give priority to the safety of students. The desire for reputation management and economic efficiency are clearly outweighed by genuine public concerns and ethical considerations.

The argument that NDAs protect the interests of the complainant is a distortion. It is easily possible to honour the complainant’s request for confidentiality in a manner that does not involve an NDA, for example, by including a clause in the termination package that prevents the employer and the employee from discussing personal and identifying information of the complainant with third parties.

The use of NDAs in cases of educator sexual misconduct is permeated by ethical and moral concerns. Universities should prohibit the use of such agreements.