This week, New Jersey signed into law a bill banning the use of non-disclosure agreements (NDAs) to cover up claims of discrimination, retaliation or harassment.
NDAs or gag orders, as they’re sometimes called, have been lambasted in the #MeToo era, thanks in part to high-profile cases like those of Larry Nassar — the imprisoned sports doctor who sexually abused more than 200 women and girls who had come to him for treatment — and Harvey Weinstein, a disgraced film producer.
New Jersey isn’t alone in restricting how NDAs are used. California limited their use last year, and legal reforms to protect against NDA “misuse” are also being brought forward in the United Kingdom. There’s no shortage of advocates in Canada pressing for similar reform.
“There is a whole history of being stifled in this country,” says Elizabeth Grace, a partner at Lerners LLP who specializes in sexual abuse cases.
“Churches, and the Catholic Church, in particular, used to be very aggressive in stifling and silencing.”
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But in 25 years of handling such cases, Grace says what used to be a brace-for-battle approach to negotiating the disclosure aspect of settlements has started to become less abrasive.
“Now, people who are being sued, especially institutions, are more careful about insisting on these sweeping gag orders,” she says.
“It can come back to bite them.”
Grace attributes that to exposure: media revealing the existence of such agreements; and more recently, #MeToo making the issue hard to avoid. That’s good, she says, because while there are some benefits to NDAs, they can also be “troubling and problematic.”
Not only is it a question of freedom of speech, Grace says, but it’s also a question of public interest, especially in cases like the Catholic Church, where gag orders kept victims quiet — a disservice to them and a disservice to society.
Julie Macfarlane knows that too well.
Macfarlane, a law professor at the University of Windsor, is a survivor of sexual abuse within the Anglican Church. Now she’s being sued for defamation, having shared the circumstances of a former colleague’s departure with his new employer outside of Canada.
In response to a list of questions sent by Global News, John Coleman, a spokesperson for the university said the school would have “nothing further to add” except a statement saying the university is “working with Prof. Macfarlane to resolve the issues.”
Macfarlane says that colleague was fired in 2014 following an investigation into allegations he was sexually harassing and intimidating his law students. He fought his dismissal, and to avoid an expensive lawsuit, Macfarlane says the university settled with him. That settlement included an NDA. The university did not respond to a request for comment on this series of events.
Macfarlane is one of several advocates in Canada who question the enforceability of gag orders. She says she was actually in the process of finalizing a draft policy for the university concerning its use of NDAs in December 2018 when she was served with a statement of claim for a defamation suit. That policy has since stalled, Macfarlane says. The university did not respond to a request for comment on the status of this policy.
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Frankly, especially in school settings, Macfarlane questions the legitimacy of gag orders.
The university has a duty to protect students’ safety, Macfarlane says.
“Generally speaking, you can’t enforce an agreement in which somebody agrees not to report a crime,” she says.
“The nature of what’s being covered up is something that there is a responsibility to report.”
This is part of what Pamela Cross, legal director at Luke’s Place, finds “very troubling” about gag orders.
NDAs can’t actually stop a person from reporting a crime to the cops. And yet, Cross says, many of the women she’s talked with who have signed a gag order will invariably mention that they don’t think they can go to the police, they don’t think they can confide in their mother, they don’t believe they can seek counselling.
“Maybe this is a fantasy,” Cross says, but she’d like to see a standard NDA used at every post-secondary institution across the country.
Right now, says Cross:
“Overwhelmingly, [NDAs] are used by institutions to keep secret stuff that shouldn’t be kept secret, and that is very silencing to the survivor.”
Jane Doe understands why a survivor might agree to a non-disclosure. She is a very private person whose case was very high profile.
Doe was sexually assaulted at knifepoint in 1986, after which she sued the Toronto police for failing to warn women in her community that a serial rapist was prowling their neighbourhood. Doe won.
Despite her advocacy in the decades since, she never fought to lift the publication ban automatically put on her identity because of the sexual nature of the case, even though some sexual assault survivors in recent years have done so.
While a publication ban is not the same as an NDA, she says, her decision had to do with the “shame and blaming and the threats” she received despite having a ban (how much worse could it have been without?). Fear of such responses — Doe’s sexual history was trotted out during her lawsuit — keeps women silent even now, she says, as much as any gag order or publication ban might.
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Natalie MacDonald, an employment lawyer who is representing Macfarlane in the defamation suit brought by her former coworker, says even though there have been some loosening on the restrictions in NDAs, it’s still “pretty heavy-handed.”
“We need to have a banning on issues of confidentiality, on NDAs, in cases of workplace harassment, discrimination, sexual harassment and sexual assault unless it’s specifically requested by the plaintiff,” she says.
“Without that ban, the perpetrator will go to another location or another job and do it again. They’ll be able to get away with it given that it’s all under wraps.”