The #metoo movement globally has been about women speaking out, exposing perpetrators and sharing their stories. Locally, recent high profile sexual harassment cases have been about women who did not want to share their stories but had them shared against their will. Silence and disclosure. Privacy and public interest. Does silence help or hinder sexual harassment?
Over my 20-year career as a corporate equal opportunity lawyer, I advised on hundreds of employment disputes that ended in mutually agreed settlements in which parties agreed to keep their terms of settlement confidential and in sexual harassment claims to never speak of it, “except as required by law”.
As a lawyer I didn’t really question whether these standard settlement clauses might be contributing to the increase in workplace sexual harassment. As Australian Sex Discrimination Commissioner and leader of the National Inquiry into Workplace Sexual Harassment (National Inquiry), the question is pertinent. Has confidentiality allowed serial harassers to continue their abuse of power with impunity? Have employers underestimated the prevalence of sexual harassment and its impact on their businesses? Have managers failed to show leadership in preventing sexual harassment because, not knowing about complaints, they assume the current culture is acceptable. Is it possible that we have come to accept inappropriate behaviour, harassment and bullying because negative consequences for perpetrators are rare?
As I travel around the country for the National Inquiry, frustration at the way non-disclosure agreements can render workplace sexual harassment invisible and silence its victims is palpable.
At the same time, often all parties want to put the unpleasantness of the dispute behind them. Some people have said they would rather never utter a word about their experience, fearing what it would do to them professionally, psychologically, economically and in their personal relationships and social networks. One woman told me she didn’t want her husband to find out, for fear he might respond with violence.
A huge number of sexual harassment cases are raised and responded to within businesses and organisations. Non-disclosure agreements mean we know very little about them.
We don’t know the circumstances, the amounts being agreed to, or whether complainants feel they have been adequately compensated. And we cannot begin to understand the experiences of either party in relation to the actual negotiation process, and anticipated, or actual, repercussions or benefits.
We have seen the power of disclosure in the Royal Commission into Institutional Responses to Child Sexual Abuse and the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. These stories not only tell us the tragic cost of failing to act, but are essential in building the evidence base for new solutions.
To that end, I am calling on Australian employers to agree to a limited waiver of their confidentiality agreements to allow submissions on workplace sexual harassment for the duration of the National Inquiry. I want all parties to NDAs to be able to talk to us confidentially or make confidential submissions.
This week I am contacting employers, directly and through key employer groups, asking them to make a public statement along the following lines:
[Name of organisation] will not enforce confidentiality obligations in non-disclosure or other agreements, which would otherwise prevent people from making a submission to the National Inquiry into Sexual Harassment in Australian Workplaces. This waiver only extends to submissions made to this National Inquiry conducted by the Australian Human Rights Commission. Individuals making a submission on matters covered by a relevant agreement may also need to seek the consent of others who may be named as part of their submission.
The National Inquiry is not investigating or making findings about allegations of sexual harassment. We want to hear about individual experiences to inform our understanding of systemic issues.
I call on Australian employers to demonstrate their leadership and commitment to tackling the national problem of workplace sexual harassment by supporting the limited waiver. They will be actively supporting the National Inquiry and its work to find solutions to better prevent and respond to sexual harassment and build safer, fairer workplaces for all Australians.