Content warning: This blog discusses themes of sexual assault
The silencing and censoring of victims of sexual assault, by their assailants had been written about by the Roman Poet, Ovid over 2000 years before the #Metoo movement. In Ovid’s Metamorphoses, young Philomela is raped by Tereus, but in defiance of her powerful assailant she threatens to tell the world of his assault. To silence her, Tereus cuts out her tongue. Those familiar with the story will know that she finds a way to communicate by weaving a tapestry of her ordeal and achieves a brutal form of justice (in mythological terms anyway). Philomela’s story is especially important because it is a literalised metaphor for the violence done to the voices of those who occupy less powerful or privileged positions in society. The story translates easily across to the relatively recent practices of silencing victims of sexual misconduct, harassment, or discrimination in the workplace, where the power imbalance that exists between companies or highly influential figures and an employee or far less powerful individuals is exploited through the use of non-disclosure agreements (NDAs).
NDAs are drafted by lawyers as a legitimate means for companies to ensure the confidentiality of sensitive business information, but they have been increasingly used as a powerful tool to deprive individuals of the right over their own stories and experiences in exchange for a financial settlement. This can result in employees or individuals agreeing terms that are objectively oppressive or even potentially unlawful. As a result there have been calls from certain quarters to impose a ban on the use of NDAs in respect of sexual misconduct, harassment, and discrimination in the workplace. Several US states have passed laws prohibiting employers from requiring agreements, including settlement agreements, which prevent an employee or prospective employee from disclosing or discussing discrimination. At the end of last year, Congress passed the Speak Out Act which was signed into law by President Biden to prevent the enforcement of NDA provisions in respect of workplace sexual assault and harassment in employment contracts (it does not prevent the enforcement of NDA provisions in agreements made once a dispute arises).
In the UK, there are existing legal protections that limit the extent of NDAs (for example they cannot remove someone’s statutory employment rights as set out in the Employment Rights Act 1996 or remove a worker’s right to ‘whistleblow’). However despite these legal protections, NDAs are being used to intimidate or silence victims of sexual misconduct, harassment, or discrimination. In 2019 the UK proposed new legislation to make legally void NDAs that prevent victims of workplace abuse, harassment or discrimination from disclosing relevant information to the police, doctors, health professionals and lawyers. It also proposed to ensure employers make clear the limitations of NDAs and that individuals signing NDAs obtain independent legal advice.
This approach seeks to address the imbalance of power while keeping a complainant’s options open. Not all complainants have the strength and courage of Philomela and are willing to experience the indignities and stress that they know that they will suffer through the courts. For those individuals, NDAs can be the only option for redress (albeit financial) and to allow them to gain closure. An important part of the change required to facilitate this is the existence of a responsive regulatory framework for the conduct of lawyers and law firms. This could involve the legal service regulators;
- providing clearer standards of conduct for example by expressly prohibiting lawyers from drafting NDAs for settling sexual harassment, discrimination, whistleblowing, or other serious misconduct, unless requested by the complainant who must have access to independent legal advice
- providing clearer standards and conduct expressly prohibiting the drafting of NDAs provisions for the above type of misconduct as part of an employment contract
- regulators adopting a clear policy on the construction of NDAs (e.g. plain English, what information is sensitive, clarity on what happens if there is a breach by either parties))
- closer regulation of workplace obligations
- requiring law firms to annually report to the regulator, data on the frequency, nature, rationale and sum of settlement through NDAs each year.
- imposition of mandatory training for lawyers and
- implementing a programme for implementation and monitoring regulatory change.
These are issue which will be discussed with the sector as part of the LSB’s professional ethics, rule of law and regulation project. What are your thoughts?
