by: Anne-Marie Langan
Several times while participating in mediation with clients who have brought human rights cases related to discrimination and/or sexual harassment in their workplace, the client was advised by the mediator that there was no way that the employer would settle unless they signed a non-disclosure agreement (NDA) preventing them from discussing the subject matter of their application. I was therefore very relieved to hear that Picini, the Minister of Labour for the Province of Ontario, recently announced that he is considering bringing in legislation banning the use of #NDAs in any claim related to workplace sexual harassment misconduct or violence because "NDAs should never be used to silence victims"(Jones, 2023). The Canadian Bar Association recently passed a resolution regarding NDAs that discourages their use in cases where victims are alleging discrimination and harassment.
Some lawyers have expressed a concern that banning NDAs may result in fewer cases settling at mediation as, unlike in the U.S. the damages at the human rights tribunals and even in civil courts are so low that they are not as much a concern to most employers than the reputational damage that can come from one of these cases becoming publicized. (Gruske, C., 2023). Although this concern is reality based, the remedy for this is to increase the damages, not the use of NDAs.
The primary concern with allowing NDAs in cases involving misconduct is that the problem behaviour does not stop and the perpetrator does not face any real consequences for their behaviour (Zhai, 2020). Given that many of these are serial offenders, this poses a real safety risk for the claimant and all those who remain in that person's work environment (Zai, 2020). There is also a concern that many victims of harassment and discrimination may not come forward for fear that they will be asked to sign an NDA and once signed would not be able to discuss their feelings about the situation with their counsellors, medical professionals family and friends thereby to what is often referred to as "the culture of silence" that exists in many workplaces. (Zai, 2020).
Prince Edward Island has passed legislation limiting the enforceability of NDAs made where the claimant "has experienced or made allegations of harassment or discrimination and the non-disclosure agreement has the purpose or effect of concealing the details relating to a complaint of harassment or discrimination" unless they have had independent legal advice and have not been in any way pressured to sign, the agreement this time limited and there is a process for waiving the NDA in certain circumstances. Several US states, including Florida and New York have passed legislation limiting the use of NDAs in this type of case (Prasad, 2018).
I have witnessed firsthand how pressuring victims in these situations to sign NDAs takes a huge emotional toll on them and leaves them feeling "unsupported and isolated given that they are often pitted against the legal might and power of their abuser" (Prasad, 2018). There is often a large imbalance of economic power between the claimant and respondent (s), especially given that the perpetrators of the harassment and the employer often team up in the negotiations in order to effect a global settlement and sometimes even use the same lawyer. Claimants often cannot afford legal counsel at all and even if they can, the cost of going all the way to a hearing is prohibitive for all but the wealthiest individuals in our society.
There is free legal advice and assistance available for people who have experienced sexual harassment at work through the SHAPE (Sexual Harassment Advice Prevention and Education) program which operates out of 22 legal clinics across Ontario. f you or someone you know is experiencing sexual harssement at work we encourage you to reach out to us at email@example.com. or call 705-749-9355.
Gruske, C. (2023, November 7). Ontario considers non-disclosure agreement ban for workplace sexual harassment and violence. Law Times. https://www.lawtimesnews.com/practice-areas/labour-and-employment/ontario-considers-non-disclosure-agreement-ban-for-workplace-sexual-harassment-and-violence/381159
Jones, A. (2023, November 6). Ontario to consult on banning ndas in cases of workplace harassment, misconduct. Toronto. https://toronto.ctvnews.ca/ontario-to-consult-on-banning-ndas-in-cases-of-workplace-harassment-misconduct-1.6632398
Non-disclosure Agreements Act, RSPEI 1988, c N-3.02, <https://canlii.ca/t/55f2s> retrieved on 2023-11-10
Prasad, Vasundhara. “IF ANYONE IS LISTENING, #METOO: BREAKING THE CULTURE OF SILENCE AROUND SEXUAL ABUSE THROUGH REGULATING NON-DISCLOSURE AGREEMENTS AND SECRET SETTLEMENTS.” Boston College Law Review, vol. 59, no. 7, 2018, pp. 2507–49.
Zhai, Jingxi. “Breaking the Silent Treatment: The Contractual Enforceability of Non-Disclosure Agreements for Workplace Sexual Harassment Settlements.” Columbia Business Law Review, vol. 2020, no. 1, 2020, pp. 396-, https://doi.org/10.52214/cblr.v2020i1.7162.
Anne-Marie Langan B.A., B.S.W., LL.B., LL.M. is the project lead for the sexual violence projects at Peterborough Community Legal Centre, including the SHAPE project which provides legal advice and education for those experiencing sexual harassment in the workplace and the Your Way Forward project which provides support for those who have experienced intimate partner and/or sexual violence. These projects are both sponsored by the government of Canada's Department of Justice. She can be reached directly at firstname.lastname@example.org.
Disclaimer: This post contains general legal information as of November 27, 2023, that may or may not apply in a particular situation. It is important to note that the law and government policies can change and this blog will not be updated to reflect these changes. It is highly recommended to seek legal advice from a lawyer about your particular situation.