Dr. Julie Macfarlane Professor of law Emerita Distinguished University Professor University of Windsor Member of the Order of Canada Co-founder, Can’t Buy My Silence Coordinated by the Gender & Diversity in Organization, Human Resources and Organizational Behaviour divisions

Non-disclosure agreements (NDAs) have become the default solution for organisations, corporations, individuals and public bodies to settle cases of sexual misconduct, racism, pregnancy discrimination and other human rights violations. This default to an “exchange transaction” requiring the victim to protect the perpetrator / their employer or organization in order to protect themselves has serious consequences for victims and covers up the misconduct of the perpetrator and/or employer. NDAs are frequently pressed on victims who are told they must sign to protect the other party if they want a settlement. 

Data shows that this is now standard practice at most corporations and other organizations when dealing with workplace disputes. As it comes under increasingly scrutiny, management and human resources professionals are reconsidering how they use NDAs in their organizations. Legislation is being driven by a Model Bill developed by the campaign Can’t Buy My Silence – co-founded by Zelda Perkins and Dr Julie Macfarlane. Legislation banning NDAs for (for example) workplace sexual harassment complaints, racial and sexual discrimination and harassment cases, is progressing and has passed into law in a number of jurisdictions including Canada, the US, Ireland, Australia and the UK. It is important and timely for manager and HR specialists to consider their use of NDAs, and what steps should be taken now to anticipate and prepare for their restriction.