'I have to have my voice': Victims push to restrict non-disclosure agreements in workplace sexual harassment

Prince Edward Island was the first Canadian province to bring in legislation limiting the use NDAs in cases of sexual misconduct and legal advocates want B.C. to follow suit

Two women who endured sexual harassment or discrimination in the workplace are pressing the province to create legislation that would restrict the use of non-disclosure agreements in such cases, which they say silences victims and shields the employer from scrutiny or accountability.

One woman, a former provincial civil servant, said even as the government considers such legislation, it continues to force its own employees to sign non-disclosure agreements in human rights cases.

“There’s zero accountability for the employer,” said the woman, who Postmedia is keeping anonymous because she is bound by the agreement she signed. “We’re the ones taking the hit. The emotional, physical, financial toll.”

Non-disclosure agreements, which have become common in workplace sexual harassment claims, can prevent victims from going public with their allegations in exchange for a financial settlement.

That’s why Vancouver-based Community Legal Assistance Society is lobbying for B.C. to follow Prince Edward Island’s lead by bringing in legislation limiting the use of NDAs in cases of sexual misconduct. P.E.I. became the first province to pass such a law in April and similar bills are now being considered in Nova Scotia and Manitoba.

Such agreements, which have been abused and overused by employers, protect the company’s reputation while muzzling the employee, often preventing them from discussing what happened with family members, colleagues and, in some cases, mental health counsellors, said Jennifer Khor, supervising lawyer for the society’s SHARP Workplaces legal advice clinic which offers free legal advice.

Khor, who has helped several women who were pressured into signing non-disclosure agreements related to workplace harassment, said considering the power imbalance with the employer, employees often sign NDAs under duress which is “unconscionable.”

The former civil servant said she quit her job at the end of 2020 and filed a complaint with the B.C. Human Rights Tribunal in 2021 over allegations she was bullied and discriminated against on the basis of her mental health.

Her lawyer had advised her to settle before the matter ended up in tribunal because she would be financially compensated. She didn’t realize until well into the settlement negotiations that the confidentiality agreement would bar her from speaking about her experience.

“I said to my lawyer, ‘I don’t want to be silenced. I have to have my voice,'” she said. In the end she felt she had no choice.

Another B.C. woman in her 30s signed an NDA this year after filing a complaint with the B.C. Human Rights Tribunal over sexual harassment in her workplace.

She had the help of a lawyer to negotiate the terms of the confidentiality agreement but the experience felt “dehumanizing to assign a dollar value to my silence and what I went through.”

“I wanted the power to decide whether or not I get to talk about it,” said the woman. “I didn’t want that to be by the hand of someone who harmed me.”

She said legislation would prevent future victims from being silenced and hold employers accountable for systemic workplace harassment.

Julie Macfarlane, a University of Windsor law professor and co-founder of a campaign called “Can’t Buy My Silence” borne out of the #MeToo movement, has helped provinces and countries such as Ireland draft legislation restricting non-disclosure agreements.

She is also pressing the federal government to adopt a policy preventing it from gagging its own employees through NDAs.

“There are there are so many different dimensions as to how people are basically being frightened into being silent” by signing an NDA, Macfarlane said. Many of the agreements are so vague or unreasonable they would not be enforceable in court, she said, but the individual might not have the finances to challenge a confidentiality agreement after the fact.

One employment lawyer says abolishing NDAs would actually re-victimize women, prevent victims from receiving appropriate compensation and exacerbate the original offence. Howard Levitt, a senior partner of Levitt Sheikh, an employment and labour law firm with offices in Toronto and Hamilton, wrote in a September blog post that companies that sign NDAs are willing to pay hundreds of thousands to “buy silence and prevent tarnishing their brand,” which is more than the tens of thousands a victim might get in human rights damages and severance pay.

Macfarlane dismissed that argument saying it wrongly assumes “there is a lot of money exchanging hands” in sexual misconduct settlements.

“He also talks as if the only thing that somebody can get compensated for is their silence,” she said. “Let’s not forget that what they’re actually getting compensated for is the harm that was done to them.”

Macfarlane also pointed out that the legislation she helped draft includes exceptions that allow a DNA to be signed if it’s requested by the person who made the allegations.

B.C.’s Ministry of the Attorney General did not respond to queries from Postmedia by deadline.

kderosa@postmedia.com

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