Rethinking Silence: Understanding Confidentiality Clauses in Settlement Agreements
Confidentiality clauses are a standard part of many workplace sexual harassment negotiations - but at what cost?
For too long, the resolution of workplace sexual harassment complaints has often been shrouded in secrecy, primarily through the use of confidentiality clauses, or Non-Disclosure Agreements (NDAs).
These clauses, embedded within settlement agreements, aim to keep the details of the complaint and the settlement process private. However, there is a growing understanding, brought to the forefront in the Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces Report (Respect@Work Report), of the harm such widespread confidentiality can do to victim-survivors.
The double-edged sword of confidentiality
Historically, confidentiality clauses have been a common feature in settlement agreements, as they benefit not only the accused, but victim-complainants too.
Sexual harassment or assault in the workplace causes significant harm to a person’s wellbeing, identity, and in some cases, their career. A sexual harassment complaint can result in backlash from colleagues and supervisors, who are all familiar with the alleged perpetrator. This can make it difficult for victim-survivors to come forward, who fear the social and economic impact such a complaint could have on their career progression and working environment. As such, NDA’s can provide a sense of privacy and anonymity which can protect victim-survivors from further trauma, while still achieving justice.
However, the Respect@Work Report revealed how NDA’s can be counterproductive to the eradication of sexual harassment by silencing victims, concealing the behaviour of alleged perpetrators and limiting management oversight by preventing transparent upward reporting processes. This secrecy enables perpetrators to remain in the workplace or industry, implicitly condoning their harmful behaviour and allowing them to potentially continue harassing others.
Respect@Work Report and NDA Guidelines
Recognising these issues, the Respect@Work Report did not call for a complete ban on confidentiality clauses. Instead, it recommended the development of national guidelines to promote best practices in their use, which were released in 2022.
The Respect@Work Guidelines on the Use of Confidentiality Clauses in the Resolution of Workplace Sexual Harassment Complaints advocated for a more individualised approach to NDA’s, rather than standardised terms across all cases. The Guidelines prioritised:
The wellbeing and safety of complainants
Case-by-case assessments
Clarity and fairness
Limited scope and duration of NDA’s
The prevention of NDA’s from impeding an organisation’s ability to address systemic change and comply with legal obligations
Independent support and advice for complainants
Impact and changes in legal practice
In March 2024, Redfern Legal Centre released the ‘Let’s Talk About Confidentiality’ Report, which researched how NDA’s have been used since the Respect@Work Report and how Australian legal practitioners have adopted these Guidelines in workplace sexual harassment negotiations. The report found that approximately 25% of practitioners had not read the Guidelines and approximately 15% were not even aware they existed.
To help remedy this, the report also produced model confidentiality clauses, aimed at assisting legal professionals in tailoring NDA’s to meet the needs of all parties, while prioritising victims’ safety. By providing concrete examples, these model clauses can help practitioners draft agreements that are clear, fair, and appropriately limited in scope and duration, while also considering exceptions for disclosure to support networks and authorities.
Violet Co’s role in addressing misuse of NDA’s
Violet Co recommends the Respect@Work Guidelines and Redfern Legal Centre model clauses to help clients navigate confidentiality clauses during settlement in a trauma-informed way - encouraging healing and systemic change.
When working with opposing party solicitors on these matters, we actively ensure the Respect@Work recommendations and Guidelines are brought to their awareness, and the model clauses are implemented in any agreements we settle upon.
This approach has been beneficial in providing better, safer outcomes for our clients in workplace sexual harassment cases, however there is a clear oversight in how this can affect all types of workplace complaints, such as racial discrimination. These provisions need to be extended to other dispute settlements, beyond workplace sexual harassment.
What to do if you’ve been sexually harassed at work
Pursuing justice is a complex process, requiring ongoing support from the moment of reporting through to negotiation. Engaging a lawyer will help you navigate the process and ensure your needs are heard by your workplace. If you are seeking legal advice or representation, we offer a range of services to assist including:
Workplace investigations (conducting investigations or representing victim/survivors)
Legal advice and representation
Mediation and restorative justice options
Civil litigation
Victim’s Services Scheme
If you need assistance, call us at 1300 VIOLET (862473) or contact us through this online form.
Fostering safer workplaces
Eliminating sexual harassment in the workplace requires a fundamental shift, from a culture of standardised silence to a culture of individualised transparency where victim-survivors feel safe reporting their experiences. Employers play a crucial role in this transformation, in establishing clear reporting systems, responding effectively to complaints, and using dispute resolution processes such as mediation to facilitate justice without re-traumatising victim-survivors.
Fostering a safer environment also requires workplaces to engage legal teams who are well-informed on the Respect@Work Guidelines and RLC’s model confidentiality clauses. By embracing these principles and implementing best practices in dispute resolution, including the case-by-case development of NDAs, workplaces can better protect victim-survivors while actively contributing to the elimination of violence and harassment in the working, legal and cultural landscapes.
If your organisation is looking to better protect your workers, we also offer consulting and advice on employment law. Contact us via this form or click here to learn more.
