'Widespread use' of NDAs with workplace sexual harassment settlements

Three in four legal practitioners in Australia have never resolved a sexual harassment complaint without a non-disclosure agreement (NDA), according to a new report.

The report from the University of Sydney surveyed 145 sexual harassment legal practitioners across Australia to determine the prevalence of NDAs in these cases.

"We found that approximately 75% of the profession, being 69.3% of applicant and 79.24% of respondent lawyers, have never resolved a sexual harassment complaint without a strict NDA," said Sharmilla Bargon, Senior Solicitor at the Redfern Legal Centre, in a statement.

Bargon, who is one of the authors of the report, said they found many legal practitioners still consider NDA clauses to be the "standard."

"The widespread use of strict NDAs means we continue to know very little about what is happening with sexual harassment in our workplaces and the impact of recent law reform in curbing perpetrator behaviour," she said.

Role of NDAs in workplace sexual harassment

The misuse of NDAs to conceal sexual harassment and protect perpetrators has long been an internationally recognised problem, according to the report.

This is reflected in the national inquiry report on the prevalence of sexual harassment in Australia, which found that NDAs could be used protect the reputation of the business or the harasser, as well as contribute to the culture of silence surrounding sexual harassment.

In response to this, the Respect at Work Council developed guidelines on when and how to use a confidentiality clause in a settlement agreement when dealing with a workplace sexual harassment claim.

"The principles provide that confidentiality clauses should be clear, fair, in plain English and translated or interpreted where necessary, considered on a case-by-case basis and limited in scope and duration," the council said on its website.

"They also provide that the person who made the allegation should have access to independent support and advice and that negotiations about the terms of a settlement agreement should be trauma informed, culturally sensitive and intersectional."

Use of NDAs ‘entrenched'

Despite these guidelines, however, the University of Sydney's report found that NDA use is "so entrenched" that many lawyers don't inform their clients that they can opt out of such clauses.

Close to 30% of applicant lawyers and 50% of respondent lawyers confessed that they have never provided this advice.

"This may constitute a breach of professional legal obligations which require clear and timely advice so that clients can make informed choices in their instructions," the report read.

It stated that "change and education within the profession" is needed to ensure that NDAs are not misused and are advised on by legal practitioners.

"The report calls for a cultural shift in the legal profession so that lawyers are prepared to question their use of NDAs in sexual harassment settlements and empower clients with choice," said co-author Regina Featherstone, Social Justice Practitioner-in-Residence, in a statement.