Zelda Perkins, former assistant to Harvey Weinstein, discussed non-disclosure agreements in a conversation with equality barrister Karon Monaghan QC at UCL recently. Protect adviser Dugald Johnson went along to hear the discussion.
Zelda began by recounting how, after persistent sexual harassment, she and a colleague resigned from Miramax, Weinstein’s film company. She described that the “journey of real abuse” began in the bewildering legal process that followed.
On finding a lawyer, she and her colleague were promptly told that they had no real option but to reach a settlement agreement with Weinstein. If they pursued a legal claim it would simply be their word against his. Following gruelling negotiations with Weinstein’s lawyers, Zelda was cajoled into an opaque agreement with draconian confidentiality clauses. Not only was she not allowed to discuss the harassment or existence of the agreement with anyone else, if called to give evidence in a criminal trial, she was to use her “best endeavours” not to disclose information about the harassment. The lawyers did not even let her keep a copy of the agreement.
Zelda’s experience has led her to take the view that NDAs should be banned in cases of workplace harassment and discrimination. She recognises that, at present, a confidentiality clause benefits the victim too. It gives them some reassurance that the allegations will not be used against them in future, such as in finding new employment. But Zelda maintains that the culture around sexual harassment will not change until confidentiality is an option for neither the perpetrator nor the victim. As long as the instinct of lawyers is routinely to agree confidentiality, perpetrators will continue to escape without scrutiny and victims will feel they have to hush it up for the sake of their career.
An outright ban would pose some problems for victims, at least initially. One likely effect is that employers will be less inclined to agree settlements rather than push the dispute to tribunal. Confidentiality is an important benefit of agreeing a settlement out of court. This effect would be likely aggravated by poor access to justice: employers are able to exploit the fact that many employees do not have the means to bring a claim against them. Both Zelda and Karon were clear that improving access to justice and to mediation must be a priority. The unavailability of confidentiality may also deter victims from coming forward.
Nonetheless, Zelda makes a compelling case for banning NDAs in these circumstances. One of the main issues with confidentiality clauses is that they fragment women’s experiences of a widespread social phenomenon, namely, workplace sexual harassment. Rather than create the conditions for women to share their experiences with each other, build solidarity and take collection action, the law individuates victims and facilitates their being silenced.
One contributor to the Q&A event at UCL, noted that abuse of NDAs highlights a conflict between criminal justice and contract law. While criminal justice depends on the gathering and presentation of evidence, contract law allows parties to agree obligations that prevent that evidence coming to light. That endemic workplace sexual harassment has gone unchallenged for so many years, only highlights the problems posed by employment law rooted in principles of contractual freedom. While non-disclosure agreements are routine in commercial contexts, are they so appropriate in cases of workplace harassment and discrimination, where there are generally significant power imbalances?