Jump to Share article Share to Facebook Share to Twitter Share to LinkedIn Email Share link via email Jump to heading A non-disclosure agreement (NDA) is an agreement, or a part of an agreement that is often used in legal settlements, including workplace sexual harassment settlements. An NDA may include both a non-disparagement clause and a confidentiality clause. Non-disparagement clauses stop people who have been targeted by sexual harassment from saying negative things about the harasser and/or the employer in future. Confidentiality clauses require people who have been targeted by sexual harassment to keep the details of allegations and the settlement confidential. Some people who are targeted by workplace sexual harassment want the confidentiality of an NDA so they can move on with their career. However, NDAs may also be used to protect the reputation of the individual or organisation who a sexual harassment complaint is made against. They can be used to cover up patterns of bad behaviour in the workplace and prevent oversight by leadership who may not be aware of complaints if they are settled confidentially. NDAs can also be used to intimidate and silence people targeted by workplace sexual harassment, enforcing a culture of silence where people are discouraged from talking about the issues. A key concern about NDA use is where the complainant in a workplace sexual harassment is not given the choice to use an NDA, and the NDA is a compulsory condition to settling the complaint. In 2020, the Australian Human Rights Commission (AHRC) delivered the Respect@Work: Sexual Harassment National Inquiry Report. Recommendation 38 of that report was that the AHRC, in conjunction with the Workplace Sexual Harassment Council, develop a practice note or guideline that identifies best practice principles for the use of NDAs in workplace sexual harassment matters to inform the development of regulation on NDAs. Following from that recommendation, in 2022 the AHRC developed Guidelines on the use of confidentiality clauses in the resolution of workplace sexual harassment complaints (NDA Guidelines). The NDA Guidelines recommend an approach to guide the use of confidentiality clauses in settlement agreements, including that: confidentiality clauses should not be seen as standard terms in workplace sexual harassment settlement agreements. the need for confidentiality clauses should be assessed on a case-by-case basis. the person who made the allegation should have access to independent support or advice to ensure they fully understand the meaning and impact of any confidentiality clause. Let’s talk about confidentiality Recent research has considered NDA use in resolving out-of-court workplace sexual harassment complaints. Sharmilla Bargon and Regina Featherstone’s report, Let’s talk about confidentiality: NDA use in sexual harassment settlements since the Respect@Work Report, investigated how lawyers used the NDA Guidelines in resolving sexual harassment complaints. They found that: approximately 25% of the legal practitioners surveyed for the study had not read the NDA Guidelines approximately 15% of the legal practitioners surveyed for the study did not know the NDA Guidelines existed. In the report, Bargon and Featherstone state that ‘our research shows that strict NDAs remain the standard resolution term. We found that 69.3% of applicant lawyers [surveyed] and 79.24% of respondent lawyers [surveyed] have never reached a sexual harassment settlement without a strict NDA’. The research report finds that the NDA Guidelines are having limited utility and effectiveness, and that further reform may be needed to regulate NDA use in sexual harassment matters. Webinar: In conversation with Sharmilla Bargon and Regina Featherstone Circle Green Community Legal will be in conversation with Sharmilla Bargon and Regina Featherstone, authors of the Let’s talk about confidentiality report, on 20 August 2024. The lunchtime webinar, Let’s talk about confidentiality: NDA use in sexual harassment settlements since the Respect@Work Report, will run from 12 – 1pm, and will attract 1 CPD point. Please register your attendance at the link below. Let’s talk about confidentiality: NDA use in sexual harassment settlements since the Respect@Work Report [Webinar] 12 – 1pm Tuesday 20 August 2024 1 CPD point Sign up here Reading list Guidelines on the use of confidentiality clauses in the resolution of workplace sexual harassment complaints by Australian Human Rights Commission, available at https://www.respectatwork.gov.au/resource-hub/guidelines-use-confidentiality-clauses-resolution-workplace-sexual-harassment-complaints Let’s talk about confidentiality: NDA use in sexual harassment settlements since the Respect@Work Report by Sharmilla Bargon and Regina Featherstone, available at https://rlc.org.au/letstalkaboutconfidentiality. Respect@Work: Sexual Harassment National Inquiry Report (2020) available at https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020 Disclaimer: Please be aware that this article provides general information only. It is not legal advice. If you have a question about how the law applies to your specific situation, you can click here to request free legal assistance.
