NDA CAMPAIGN: Our Silence is Not for Sale - Working Women's Centre Australia

NDAs are stopping women from speaking up in the workplace.

We know many women who have faced harassment or discrimination at work have made tough, courageous decisions to speak out.

We know that it is a woman’s right to speak out if she chooses, and that the overwhelming reason that women decide to speak out is to warn other women and prevent the perpetrator from abusing anyone else in the workplace.

Many women want to raise workplace safety hazards, stop harassment and discrimination, and create a safer future for other.

Some women also consider speaking out as part of their own healing process.

We know that when women make a complaint, they are often met with a non-disclosure agreement (NDA), where the employer or perpetrator, insists on keeping the harassment and or discrimination confidential to resolve the complaint.

This silencing tactic is used by employers and perpetrators to protect their reputations and silence women. They are unjust and have been used to hide serious workplace harassment.

When we silence women in the workplace, we stop progress. How can we improve workplaces, if we’re not talking about the issues?

Women need to be able to tell their stories, to speak up, to warn others, to demand change.

What legal tools and laws are being used to silence women?

There are legal tactics and strategies used by bad faith employers and perpetrators to overwhelm and intimidate women from speaking up and pursuing their complaints. These tactics are often called strategic litigation against public participation (SLAPP). SLAPP tactics are designed to stop public participation and women from speaking up.

Some of these tactics include:

1- The use of NDAs: this could be in the form of ‘confidentiality’ or ‘non-disparagement’ clauses in a settlement.

2- Defamation: threats of unfounded defamation claims against women who have made a complaint.

3- Gag laws: perpetrators seeking suppression orders, to stop and supress the detail of what happened.

What is an NDA?

An NDA is a legal obligation that requires confidentiality.

These agreements are widely used in sexual harassment and discrimination disputes. They require the woman who suffered harassment to keep their experience completely confidential or partly confidential – that is, they are not allowed to talk about what happened to them.

In circumstances where a woman who suffered harassment or discrimination does not want to stay silent, the insistence of confidentiality is a complete misuse of NDAs by employers or parties in positions of power.

Although NDAs mostly require all parties (employer, woman, and the perpetrator) to maintain confidentiality, the agreement is almost always requested by the employer and perpetrator, not the employee.

Often the NDA serves the employer and perpetrators’ interests and not the woman with experience of harassment or discrimination.

The problem with NDAs

These tools and laws mainly originated in the business world to protect trade secrets and confidential information. NDA clauses protect intellectual property or trade secrets to allow a business to continue to derive profit from offering something unique. The prevalence of NDAs in template court and tribunal deeds increased from the early 90s.

With the creation and increase connectivity of people through the internet and social media, the nature of businesses has become more complex and riskier, thus why we see NDA widely used today. The landscape was very different prior to the 90s where stories could only be publicly told through more traditional and inaccessible forms of media such as print, radio and television.

This is how NDAs can operate in the context of sexual harassment. NDAs can operate to protect a secret, being the existence of a perpetrator, protect public harm to corporate reputation which in turn allows continued making of profit.

The #MeToo movement brought to light that confidentiality and NDAs were considered ‘non-negotiable’ in out-of-court settlements for sexual harassment claims, and we still see many of these cases today. Following the #MeToo movement, the Australian Human Rights Commission confirmed that in Australia sexual harassment matters are routinely settled with NDAs.

Currently there is little incentive for someone who has been sexually harassed to make a complaint. Court processes are long and taxing. Very few cases reach judgment – minimal public visibility on what a successful sexual harassment complaint outcome looks like. The misuse of NDAs exacerbates this issue.

SLAPPs are legal actions which have the effect of intimidating, silencing, or financially burdening individuals and organisations advocating in the public interest. It threatens our fundamental democratic rights of free expression and public participation, especially on issues of shared public concern.

SLAPPs frequently involve a disparity in power and resources between parties, with the wealthy, resourceful and powerful attempting to silence people who have fewer financial means or resources. These SLAPP tactics are also used against those who speak up about sexual violence or other forms of gender-based harm in the workplace.

In Sydney University’s ‘Let’s Talk About Confidentiality’ report, it was found that in Australia, defamation concerns notices (the first step in commencing defamation proceedings) are routinely used against women who speak up about sexual harassment at work.

In Australia, there has been a rise in the seeking and making of suppression orders in employment law litigation, particularly in superior courts. Suppression orders in this context are typically used to protect individuals and corporate employer reputations.

Suppression orders, also known as ‘confidentiality orders’ have been used by perpetrators and employers who want to hide harmful information about systemic workplace culture issues. They are seen as another tool for employers to maintain the confidentiality of workplace sexual harassment and discrimination allegations made against them by women citing confidentiality as a key motivator for reaching settlement.

The increased use of suppression orders has sparked criticism from some media outlets who argue that their growing use undermines the public’s right to know (particularly about high-profile disputes involving prominent businesses and senior executives).

NDAs are too often used as a bargaining tool that forces women with experience in harassment and discrimination to feel they must choose between achieving compensation for the harms they have suffered and speaking out to create broader awareness or change.

This coercive dynamic can leave women with experience of harassment or discrimination feeling silenced, isolated, and fearful of the potential ramifications of even accidental disclosure to friends or family – given the threat of legal action. While some women may wish to seek confidentiality (e.g. to protect their privacy, cultural context, or future employment prospects), many do not want an NDA at all.

We need to shift the balance of power by reducing the coercive use of NDAs, ensuring women with experience of harassment and discrimination retain greater control and autonomy over their story and the terms of resolution. This, in turn, promotes safety and wellbeing by allowing disclosure where necessary (e.g. to seek support or warn others) and ensures settlements focus on substantive remedies such as compensation, workplace change, or apologies – rather than silence.

Importantly, health risks of keeping secrets are well documented and can lead to post traumatic stress disorders, among other illnesses. The ability to speak and putting experiences into words will assist women with experience in harassment and discrimination in the healing process.

Are you a woman with experience involving an NDA that you think is unfair? You can download resources on this in our Advocacy Resources page.

For employers, ending the misuse of NDAs and other unjust legal tools will support:

Compliance with the positive duty to prevent sexual harassment under the Sex Discrimination Act 1984; and

Ensure they have met their primary duty in eliminating or minimising workplace psychosocial hazards as part of the work, health and safety (WHS) laws and regulation. A psychosocial hazard is anything that could cause psychological harm (e.g. someone’s mental health), including sexual harassment.

With fewer barriers to disclosure, organisations are better placed to identify systemic and cultural problems, patterns of behaviour, and structural vulnerabilities that might otherwise remain hidden. This fosters accountability and serves as a deterrent to future misconduct, contributing to safer and healthier workplaces.

Importantly, it can also protect employers’ reputations in the long term. While NDAs may have once been considered a means of shielding reputational risk, secret settlements that later come to light often may cause greater damage.

Clearer limits on NDAs provide legal certainty and enable employers to focus on substantive preventative measures. By supporting transparency and systemic change, law reform to address NDA misuse strengthens workplace culture, builds trust with staff and the public, and reduces the risk of serial offenders being moved across multiple organisations.

Are you an employer who would like to know how NDAs relate to your WHS and positive duty obligations? You can download resources on this in our Advocacy Resources page.

We need to bring uniformity to the legal practice area and, along with effective practitioner education, ensure lawyers are compliant with their professional and ethical obligations. There must be clarity to practitioner obligations and in turn reduced liability for non-compliance with professional obligations.

When advising complainant clients, there must be better support in the provision of trauma informed services, as well as sharpen focus on settlement outcomes including systemic outcomes.

When advising employer clients, we must ensure they are compliant with their work health and safety obligations, obligations under the Sex Discrimination Act 1984 including the positive duty to eliminate sexual harassment and a focus on settlement outcomes which better reflect employers’ needs such as workplace changes and systemic policy and procedure review.

Are you a lawyer who cares about this issue? You can download resources on this in our Advocacy Resources page.

What changes do we need to end the silence?

We need legislation reform in Australia that will make NDAs unenforceable when they are used by the powerful to hide harmful information about serious workplace issues and give workers the right and power to speak up. NDAs should only be used if the woman wants one.

Our campaign focuses on three key areas of work:

Law reform

We are striving for law reform to end the misuse of NDAs. We want to end the weaponisation of defamation laws against women and stop SLAPP litigation.

Explore NDA Law Reform

Legal profession advocacy

We aim to inform the legal profession about how NDAs can breach ethical obligations and advocate for better professional practices.

Legal Profession & NDAs

Research

We want to investigate the impacts of silencing women at work, specifically the effect of NDAs on women’s health, well-being, career navigation and security.

Research on NDAs & Women

Join us to build a movement in solidarity with women who have experienced workplace harassment and discrimination and to push for strong laws in Australia that will end the silencing of women.