When Australia’s first national inquiry into workplace sexual harassment was launched, Kate Jenkins was optimistic.
She had negotiated settlements for businesses facing harassment allegations since she had been an employment lawyer for a long time. Now that she served as the nation’s sex discrimination commissioner, she was familiar with CEOs who were fervent advocates for gender parity in hiring and advancement.
However, only approximately 30 organizations and institutions agreed to the request by the deadline to abrogate nondisclosure agreements with employees, which precluded anyone from privately reporting prior harassment to the investigation.
The multinational consulting firms Deloitte, PWC, and Accenture, the ad agencies Interpublic Group and Dentsu, and Macquarie Bank were all absent. All of them support International Women’s Day, which honors women’s accomplishments, and many of their CEOs are members of Male Champions of Change, an organization that promotes workplace diversity.
As a lawyer, I am aware that they all provided me precise legal justifications, Jenkins stated. “It is not murder, though. There is just one reason we are asking them to waive. They had a great chance of succeeding.”
She said, “It really told me how much our organizations depend on such settlements.”
Nondisclosure agreements have drawn criticism from all corners of the world as the #MeToo movement, which was sparked by media reports of misbehavior against women in the United States, raised more general concerns about how and why workplace harassment persists.
These agreements often pay the employee in return for her silence on her complaints or refusal to file a lawsuit. Nondisclosure agreements are frequently employed by businesses to keep internal information private, but they are increasingly seen as barriers that allow unethical or unlawful workplace behavior to continue.
In Britain, the BBC discovered that universities had paid out over $162 million in nondisclosure agreement payoffs over the previous two years, and a government probe is currently looking into the use of such contracts in discrimination cases.
Some states in the United States have sought legislation to restrict the use of such agreements after millions of dollars were paid to quiet women who filed allegations against influential people like Harvey Weinstein, a Hollywood producer, and Bill O’Reilly, a Fox News personality. According to a recent statute in New York, businesses cannot grant nondisclosure agreements in sexual harassment lawsuits unless the victim specifically requests such protection.
Nondisclosure agreements and the culture of silence they foster in Australia are at the center of one of the first large-scale studies ever conducted there on the economic consequences of workplace sexual harassment, the motivations behind the behavior, and the legal framework for handling complaints.
“The ecosystem depends on silence”
After Australia approved a legislation banning sexual harassment at work in 1984, Jenkins began her profession as an employment lawyer. She provided advice to businesses about several issues that frequently resulted in nondisclosure agreements.
She said that it was usual practice to see confidentiality agreements as advantageous to all parties: the accuser who feared reprisal, the defendant who rejected the charge, and the business that wanted to preserve its reputation.
Jenkins started to doubt the confidentiality upheld by nondisclosure agreements in 2013, when she left corporate law to work for the government. Companies were having trouble addressing the issue of harassment, and offenders were seldom held responsible.
She said that the behavior contributed to an ecology that still relies on quiet to safeguard reputation.
According to a survey of 10,000 people that accurately represented the Australian labor force in terms of age, sex, and location, the Australian Human Rights Commission found in 2018 that a third of all employees in the nation had reported experiencing sexual harassment in the workplace over the previous five years, up from one in five in 2012 and one in ten in 2003.
Jenkins started the nationwide investigation in June as the #MeToo movement gained momentum with the hope that its results would bolster suggestions to eradicate workplace harassment.
Nearly 100 employment and trade organisations were surveyed by a study team, and more than 400 people and businesses submitted written comments.
They discovered that nondisclosure agreements prevented accurate fact-finding.
“I accepted an NDA for a settlement and can’t comment,” is a common narrative, according to Jenkins.
The practice was a part of an ecology that, and still does, relies on quiet to safeguard reputation.
Jenkins, Kate
Top executives who were interviewed by the team claimed they were not aware of settlements within their own organizations. The team discovered that many instances had been handled by legal or human resources divisions without senior management ever being made aware of the specifics.
Professor of social studies Judith Bessant of Melbourne’s RMIT University questioned whether such a gap was deliberate.
In a statement she provided to the investigation, she claimed that nondisclosure agreements contributed to the persistence of harassment and advocated for a new law that would forbid agreements that prevented the public from learning about gender-based harassment, abuse, or bullying at work and how such incidents were handled.
According to Bessant, “there is a desired ignorance or a wilful blindness to what some people could call embarrassing facts.” “NDAs make that possible.”
About the usage of nondisclosure agreements or their effects on the workplace, little information or study is available.
Jenkins lobbied for firms to provide restricted waivers to employees who wished to take the poll in a letter to industry associations, marketing agencies, colleges, and public sector officials in November. The letter was delivered to the Male Champions of Change organization.
modifying the “game rules”
Many businesses refused to provide the waiver. Jenkins questioned whether some male managers had secrets or were intimidated by the alteration of the “rules of the game” in an interview.
She said, “I didn’t realize I was poking a nerve.”
Male Champions of Change, a coalition of more than 200 of the nation’s most influential men, supported the national inquiry and discussed the nondisclosure request with its members, according to Julie Bissinella, the group’s program director. They have pledged to “step up beside women in building a gender equal world.” It opted against voting on the matter or making recommendations to its members.
The decision ultimately rests with the individual organizations, according to Bissinella.
Bec Brideson, the founder of the female-focused ad firm Venus Comms, launched a social media campaign dubbed “waive together” in the weeks that followed to persuade ad businesses to allow those who had signed nondisclosure agreements to talk.
She stated in an interview that things get better when there is more openness and unsilencing. Because of the quiet, these kinds of atrocities are committed against people.
Before the deadline, the consulting companies Ernst & Young and KPMG issued exemptions. After being approached by The New York Times, Deloitte and Interpublic announced they would approve the waiver in March, after the deadline had already passed.
Harassment will be tolerated in no way.
Some businesses, such as PwC and Dentsu, declared they backed the investigation and would evaluate exemptions on a case-by-case basis. Both businesses made it clear that they would tolerate no sexual harassment.
Nondisclosure agreements were not a part of Accenture’s “general practice for victims of sexual misconduct,” according to a statement the firm made. A spokesperson for Macquarie declined to comment.
Nicole Taylor, CEO of the Interpublic-owned advertising firm McCann Australia, said that “internal procedural difficulties” were to blame for the deadline being missed. When The Times inquired about the company’s missing waiver, Taylor said she had been in Tokyo with Harris Diamond, McCann’s worldwide chief executive. She said that after talking about the matter, the business called the Australian Human Rights Commission to sign up.
The result, according to Taylor, was that it wasn’t dealt with as quickly as it should have been. “Managing that timeline is certainly the aspect that didn’t work out well, but the most important thing is that we achieved the result,”
The investigation received a “handful” of responses from individuals who had signed nondisclosure agreements after businesses obtained the waiver. Jenkins stated that she does not believe that merely getting rid of nondisclosure agreements would eradicate sexual harassment as she and her team evaluate those comments and other research in order to offer recommendations by the end of 2019.
She said that firms’ perspectives on settlements need to change so they put more emphasis on preventing the problem rather than trying to hide it.
Jenkins stated that “we need to go toward prevention.” We must be capable of handling problems.