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Sexual Harassment Non-disclosure Agreements Questioned

Sexual harassment non-disclosure agreements questioned

Sex Discrimination Commissioner Kate Jenkins has renewed her call for Australian businesses to release their staff from non-disclosure agreements, so they can be free to give evidence to the current national inquiry into workplace sexual harassment.

Ms Jenkins recently wrote to 120 chief executives asking for special waivers that would have the effect of freeing victims of sexual harassment to give evidence to the inquiry.

Just 20 have agreed.

What are non-disclosure agreements?

James Vercoe from Discrimination Claims said that non-disclosure agreements were now standard practice when a sexual harassment complaint is settled.

“A company will normally agree to settle a claim of sexual harassment to avoid the matter going to court and becoming a matter of public record, which can then be reported in the newspapers and on tv,” he said.

“So in return for a compensation payment, the company will insist that the victim of the harassment sign a non-disclosure agreement which effectively gags them from speaking publicly about the matter.

“Unless victims are given special permission to give evidence to this current inquiry, then they are legally not able to speak about their experience.”

NDAs a ‘secondary form of victimisation’

The call for greater cooperation from Australia’s chief executives comes as Fairfax published an opinion piece by Professor Judith Bessant, from RMIT’s School of Global, Urban and Social Studies.

In it, Professor Bessant describes non-disclosure agreements as a “secondary form of victimisation” which “can compound the damage done to the person harassed or harmed by bullying, adverse action or sexual harassment, adding new layers of harm to people’s health, reputation, career advancement or capacity to get another job.”

Professor Bessant argues that there is a power imbalance between an employee who has been subjected to harassment, and a cashed-up, lawyered-up, big employer that demand confidentiality agreements to protect its own interests.

“By the time most workers who have had their complaint heard and upheld, they are already damaged by processes that involve sheer exhaustion and the effects of chronic stress and fear, all damaging their physical and mental health,” she writes.

“This often makes contesting requirements by their workplace for a confidentiality agreement too much: complainants just want the whole thing over and done with.”

In her article, Professor Bessant suggests that non-disclosure agreements prevent the community from understanding and addressing the issue of sexual harassment in the workplace.

“Confidentiality agreements also mean there little or no learning can happen,” she continues. “Typically this means there will be no real attempt on the part of the workplace to recognise what happened and to resolve the matter/s in ways that restore what the complainant has lost.

“In this way confidential agreements aid institutional amnesia or preference not to know or tell that assumes “things can go on as usual”.”

Companies should cooperate with inquiry

Mr Vercoe joined the calls for corporate Australia to cooperate with the inquiry.

“Companies that refuse to allow employees and former employees to disclose, in a confidential setting, their sexual harassment for the purposes of a government report aimed at addressing how we can prevent that harassment – I’d find it very difficult to accept that those companies are acting ethically or in a socially responsible manner,” he said.

Deadline extended

Ms Jenkins has assured businesses and workers that the inquiry is not interested in ‘naming and shaming’, and people can give evidence anonymously.

The deadline for submissions has now been extended until the end of February.

Individuals are invited to send their own submission to the inquiry by clicking here.

Read more

>>  What is sexual harassment?

>>  Sexual harassment could become a criminal offence

>>  Harder for public servants to give evidence to harassment inquiry

>>  New LGBTIQ survey on sexual harassment

If you have experienced sexual harassment, you may be entitled to compensation.

For help and advice, please call our expert team at Discrimination Claims on

1300 853 837

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