‘Silencing survivors’: Lawyers demand end to secrecy deals in sexual harassment cases

Lawyers have launched a push to end the use of confidentiality agreements in sexual harassment cases, arguing secretive settlements protect company reputations and keep victims silent.

The Australian Law Alliance’s call to prohibit the use of non-disclosure agreements (NDAs) in all harassment and discrimination cases, except when requested by survivors, comes ahead of soon-to-be-finalised recommendations from a ministerial taskforce into workplace sexual harassment.

Slater and Gordon employment lawyer and Australian Law Alliance member Laura Blandthorn.Credit:Chris Hopkins

“The way that we see NDAs used is to silence victim-survivors,” said Laura Blandthorn, who represented the alliance on the taskforce.

“NDAs typically benefit the perpetrator much more.”

The Age spoke with the husband of a woman who was allegedly sexually harassed by a senior figure at a prominent Melbourne real estate firm.

The woman signed a non-disclosure agreement last year after agreeing to a significant financial settlement, but the details of the case were never made public.

The woman’s husband, who asked not to be named to avoid identifying his wife, accused the agent of using money and an NDA to “effectively cover this up”.

“This is not the first time he’s done it. Leopards don’t change their spots and that’s why they use these NDAs. I believe the basic facts of the case should have been made public. My wife would have been traumatised by the release of the finer details, but the public should know if a sexual assault or an indecent assault has taken place,” he said.

Lawyers say non-disclosure agreements have become standard practice for employers dealing with sexual harassment complaints, to prevent disclosure about an incident.

While the contracts can protect a company’s commercial interests, keep cases out of courts and provide anonymity to complainants and accused perpetrators, the agreements can have perverted effects.

Disgraced movie mogul Harvey Weinstein, for example, bought the silence of women he was accused of assaulting, using confidentiality clauses that prevented his conduct from being exposed.

As investigations into Harvey Weinstein’s behaviour gained traction, more of his alleged victims came forward to break their enforced silence.Credit:Getty Images

Ms Blandthorn, an employment lawyer at Slater and Gordon, has had clients with agreements so broad that they prevented survivors explaining why they left a workplace, or even from speaking to their families and friends about what happened.

Deeds of release as part of agreements routinely attach “no fault” to the perpetrator.

“Many [survivors] are angry that while they have to leave the workplace as part of the legal resolution, the alleged harasser often remains in their role at the workplace as if nothing has happened,” Ms Blandthorn said.

Workplace Safety Minister Ingrid Stitt (right) in March announced the ministerial taskforce, which will be co-chaired by Liberty Sanger (centre) and Bronwyn Halfpenny.Credit:Simon Schluter

The taskforce established by Victorian Workplace Safety Minister Ingrid Stitt and chaired by parliamentary secretary for workplace safety Bronwyn Halfpenny and lawyer Liberty Sanger is expected to soon finalise recommendations, including on the use of non-disclosure agreements, that will go to the state government.

Ms Sanger, a workplace injury lawyer at Maurice Blackburn, said confidentiality clauses could still be used in settlements to protect identities and settlement sums while doing away with non-disclosure agreements.

“It’s an agreement without the punitive work of an NDA, which effectively cuts out the tongue of the worker, forever rendering them mute,” she said.

The taskforce has looked closely at what has occurred in Ireland, where a bill banning the use of non-disclosure agreements in workplace sexual harassment cases, except when requested by an employee, received unanimous support in parliament’s upper house.

Last year’s Respect@Work report from Sex Discrimination Commissioner Kate Jenkins has also been integral to the taskforce’s work.

Niki Vincent is Victoria’s inaugural Public Sector Gender Equality Commissioner.Credit:Paul Jeffers

Also in Victoria, Public Sector Gender Equality Commissioner Niki Vincent is examining, for the first time, the use of non-disclosure agreements in sexual harassment cases in the public sector.

“What we’re looking at is how widespread the use of non-disclosure agreements is … because we actually don’t know that,” she said.

Dr Vincent said data collected will be publicly available and searchable on the commission’s website.

“We’re hoping this transparency will drive change,” she said.

James Fazzino, co-convenor of Champions of Change, a group of corporate leaders committed to gender equality, said: “The reputational damage in trying to cover up harassment, and then it subsequently comes out, is far greater than saying, we had a case of harassment and, importantly, this is what we’re doing about it.”

BHP, which revealed at least 48 workers were sacked from its mines in Western Australia for sexual harassment over the past two years, announced the company has stopped using confidentiality clauses in settlement agreements, and it requires the same from its contractors.

Mr Fazzino, also the chair of Manufacturing Australia, said he knows of another company that introduced a key performance indicator that measures who continues working for the business following a complaint of sexual harassment.

“That’s an excellent measure because that shows whether you’ve got it right or not. In so many cases, the man stays. That’s outrageous isn’t it?”

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