This was originally published as an opinion piece on Saltwire.com on October 7, 2021
What offences should be legal to cover up? When I first learned about the issue of non-disclosure agreements (NDAs), this was a central question to the discussion. There are many valid and important reasons, like protecting trade secrets and intellectual property, to have confidentiality guaranteed. But in cases of sexual assault, discrimination, or harassment, all of which are illegal activities, how is it possible that in 2021 it’s still legal for someone to hide an offence? There are several serious impacts when NDAs are misused.
Serial harassers are hidden from sight.
When multiple complaints are raised against an individual within an organization or institution but NDAs keep that hidden, potential future victims have no way of knowing they are at risk. This is directly against the public interest. When victims are pressured to sign NDAs in response to allegations of misconduct, harassment, or discrimination, future employees or students are put in danger. Yet, this is currently standard practice across Canada.
Right now there are a number of ongoing lawsuits brought by students against universities in the U.S. stating that the universities failed to protect them from known predators. These universities signed NDAs with students who were sexually assaulted by a professor and did not remove the professor from their position. This allowed a known sexual predator to continue to work in close contact with other students.
Willfully protecting a serial harasser and failing to take steps to prevent others from being harassed creates significant liability. The only one benefiting from this is the perpetrator. As this practice is currently legal in Canada, it must change.
Victims deserve care and support.
When NDAs are used to cover workplace abuse, victims are prevented from sharing what happened with their support network, health-care providers, or mental health professionals. Disclosing their abuse could open them up to a lawsuit even though they are simply trying to heal from the abuse.
Sexual assault in the workplace most often occurs in situations where the odds are stacked against the victim and it is understandable why they are reluctant to seek justice immediately. They are at one of the worst points in their life, and often need to recover from the experience.
Survivors of sexual assault know it is extremely difficult to get justice in our current system. Victim-blaming and myths are still pervasive. These victims fear consequences and retaliation if they go public. Refusing to give them pathways to process that trauma is harmful.
NDAs also prevent people from seeking justice when they are ready to do so.
For some, the idea of going through with a police complaint may be unthinkable when they were just assaulted. However, after a victim has had time to process what has happened, they may reach a point where they are ready to seek justice. If they were pressured to sign an NDA in the turmoil of the moment, they no longer own the rights to their own experience.
Protecting perpetrators does not serve the public’s best interest. We need to have the conversation about how releasing a business or organization from liability is not the same as releasing a perpetrator from responsibility. The perpetrator must not be able to hide behind an NDA.
We must modernize the rules to protect people.
My proposed bill aims to remove NDAs in cases of sexual misconduct as a shield for perpetrators to hide behind.
This bill will codify what should be happening already: spelling out a clear list of individuals a person should always be able to talk to about what happened, those like their doctor, mental health professional or the police. It will ensure the victim has received legal advice before signing this and, perhaps most importantly, provides the right to waive that confidentiality in the future if the victim reconsiders.
So far, no jurisdiction in Canada has tackled this issue, but other places are starting to. In the U.S., quite a few states have put parameters in place to limit NDAs in cases of sexual misconduct, harassment and discrimination. Ireland is in the process of debating a bill that would ban them in these cases. It was brought forward by a Senator and so far has received all party support.
I’m hoping P.E.I. will be the first province in Canada to take this important step. My draft bill is posted on our website at https://peigreencaucus.ca/2021/09/non-disclosure-agreements-act/ and is open for consultation. I’m looking forward to hearing from Islanders on what these changes should look like.
Lynne Lund is the MLA for Summerside-Wilmot and Official Opposition critic for Justice and Public Safety.