Non-disclosure agreements are commonplace in sexual harassment cases, but they’re being misused to silence people

By Regina Featherstone, Sharmilla Bargon, University of Sydney

Non-disclosure agreements (NDAs) came into public consciousness during the #MeToo movement after multiple women spoke out with sexual harassment allegations against film producer Harvey Weinstein.

Weinstein systematically used NDAs to silence victim-survivors. It’s a major reason it took years for his behaviour to be made public. Because of the secrecy involved, it’s also how he was able to continue perpetrating harm against so many women.

We’ve been researching how NDAs are used in out-of-court sexual harassment settlements here in Australia. We’ve found NDAs remain the default resolution practice for most lawyers, despite guidelines advising against it.

Given one in three Australian workers have been sexually harassed in the past five years and that many incidents are not reported, the pervasive use of confidentiality agreements means we know very little about what is happening in our workplaces and the cultural drivers of sexual harassment. It also means victim-survivors may agree to terms that prevent their psychological healing because they are bound to confidentiality.

What is a non-disclosure agreement?

NDA is the universal description for what we call confidentiality agreements or confidentiality contractual terms.

Most sexual harassment complaints are resolved out of court and are subject to a “settlement agreement”. These are contractual agreements that release respondents from any liability in exchange for a benefit to the applicant, such as money.

In Australia, confidentiality and non-disparagement terms are usually part of this settlement, so it’s effectively a NDA.

There is no doubt these agreements can be beneficial, and certainly some victim-survivors seek these terms. However, the Australian Human Rights Commission recognised that they’ve become standard and misused in the Respect@Work Report.

The Respect@Work Council was set up to implement the recommendations in that report. The council released guidelines in December 2022 on the use of NDAs in workplace sexual harassment settlements. The guidelines say confidentiality clauses should not be seen as standard terms.

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