It’s time to ban NDAs

For years, experts and victims have been warning that non-disclosure agreements (NDAs) contribute to a culture of fear and silence that perpetuates gender violence and sexual harassment. They were the weapon of choice used by serial predator Harvey Weinstein to gag his victims and a favourite of Hockey Canada for covering up sexual misconduct scandals. Evidence of the toxic sting of NDAs has become impossible to ignore. But ignoring is exactly what Ottawa has been doing.

I have been campaigning for a ban on these malignant devices for more than a decade. In 2018, I called on the House of Commons to bring an end to NDAs. The committee considering amendments to the government’s anti-harassment legislation (Bill C-65) declined to look at the subject at the time.

If Canada’s MPs and senators are serious about ending sexualized wrongdoing in the workplace, on the campuses and in the streets, they need to ban NDAs now.

NDAs are reflexively sought by perpetrators and their employers because they provide a bodyguard of judicially enforceable machinery that shields wrongdoers from liability and protects them from public censure. In the 16th century, women were silenced by powerful men using devices like the scold’s bridle, which impaled the tongue to prevent them from talking. Today, wily lawyers and powerful predators, backed up by wealthy employers, use the law to make sure that a victim’s voice will no longer imperil the status quo, which, in these situations, is Latin for “the old boys’ club.”

When victims reach out to me, they frequently describe the impact of their NDA by using language that mirrors the violence of their attack. Terms like “choking,” “smothering,” “gagging” and “suffocating” recur time and again. This is a glimpse into the retriggering damage NDAs cause, and why so many victims liken the aftermath of the trauma to being assaulted over and over again.

Gender violence and sexual harassment are known to produce life-altering psychological and physical health consequences. They can last for years and worsen over time. Clinical evidence confirms that most survivors of workplace harassment meet the diagnostic test for post-traumatic stress disorder (PTSD), a condition that swings the door wide open to an array of further physical and emotional repercussions.

I have long argued that NDAs represent a classic form of institutional betrayal that intensifies victims’ experiences of physical and emotional harm when they discover that the organization they thought was there to protect them is actually there to silence them and protect the perpetrator. As Joan Cook, professor of psychiatry at Yale’s school of medicine and renowned expert in sexual trauma, told me in an interview, “Without a doubt, institutional betrayal deepens and widens a survivor’s pain and makes it harder for women to recover from traumatic exposure.” Institutional betrayal produces a whole range of post-traumatic symptomatology, including PTSD, depression and suicide attempts. A much underreported part of sexual misconduct literature is that for some victims, the outcome has been life-ending.

The trauma of gender violence and sexual harassment, and its echoing aftereffects, represents a tipping point in the lives of victims that has few comparisons. They are typically at their lowest and least confident. Duplicitous employers know this, and many organizations have developed well-honed tradecraft to make victims feel alone, unwelcome and unsafe. In the credibility economy that frequently appears after reporting an incident, a victim quickly discovers that her credibility is discounted, slashed and marked down by enabling organizations, system gatekeepers and even workplace colleagues, while her perpetrator’s is inflated, expanded and boosted, especially if he is a star performer or a powerful figure in the hierarchical structure.

Other weapons of blaming, disbelieving, shaming and retaliation are skillfully launched to push victims out of sight and into the suffocating grip of an NDA. Whisper networks and office grapevines are frequently used by misbehaving organizations and perpetrators to sabotage a victim’s reputation and credibility. The relentless drive of these toxic triggers can quickly take a toll on the health of victims. Remaining on the job often becomes untenable.

It’s not surprising that the promise of a quick financial settlement becomes the shiny object that distracts from the draconian realities of the NDA required to get it. For victims desperate to move on with their lives, this magic trick creates the illusion of a way forward that can appear irresistible. But for too many, what these settlements foreshadow is a trip in just one direction: downward.

As we learned again from the landmark findings of the Truth and Reconciliation Commission, it is a natural condition of the healing process that victims of trauma be free to share their truths in ways, in spaces and with communities of their choice. By turning victims into unspeaking witnesses for their unspeakable experiences, NDAs compound the trauma of sexual violence and thwart healing. These gag agreements typically have no sunset clause, raising their unrelenting grasp to the level of a life sentence.

I’ve looked carefully at legislation which purports to improve NDAs coming from the U.K., several U.S. states and Prince Edward Island, among other jurisdictions. From what I see, these reforms have enough loopholes to drive a truck full of sexual miscreants and their crafty lawyers right through them.

Few ban NDAs in settlements involving gender violence and sexual harassment, and even for those that do, a few slick legal contortions can quickly transmogrify them into non-disparagement agreements, which are first cousin to voice-hijacking NDAs. They still represent a blunt effort to control the speech and agency of victims. No legislative changes even contemplate relieving victims from their tortuous obligations under existing NDAs, as I have long urged.

Tinkering with NDAs will not alter their malign impact on victims nor the fact that it is the players with the most power and money who are still in charge. It’s bad enough that these weapons can produce a Rorschach-like response where the names Harvey Weinstein and Jeffery Epstein jump into a victim’s mind. The sequelae unleashed by NDAs and the trauma of institutional betrayal should themselves be enough to throw these artifacts of abuse into the dustbin of history. But the gravity of common sense and social conscience pulls strongly away from NDAs for another reason.

Frequently missing from discussions – learned and otherwise – about the harm and future of NDAs is their public policy implications. By sealing victims in a sarcophagus of silence, bad actors prevent those who have been harmed from smashing the glass to warn others. This shroud of coerced soundlessness, like the kind that kept Hockey Canada’s scandals secret, also keeps the public in the dark about just how safe victims are in the workplace and whether public policy is failing in its job to protect the most frequent targets of gender violence, sexual harassment and abuse.

On that point, it seems to me that NDAs create the very conditions that are the opposite of what lawmakers, advocates and thinking society should be seeking: an end to sexualized wrongdoing. Most women never report incidents of gender violence and sexual harassment. As the acclaimed psychologist and gender violence expert Louise Fitzgerald vividly documented in her seminal piece Why Didn’t She Just Report Him? more than a quarter-century ago, it’s what happens after they come forward that causes most women to have second thoughts. “By far, the biggest reason,” she wrote, “is fear – fear of retaliation, of not being believed, of hurting one’s career or of being shamed and humiliated.”

NDAs create yet another barrier to coming forward. Victims see them as part of a ceaseless assault by a rigged patriarchal power system that censors their voice while safeguarding their perpetrator. NDAs should not be rebuilt, restructured or redesigned. They need to be banned.

It’s time for Canada’s MPs and senators to stand up and make that happen.