The Department of Equality is to commission research into the use of non-disclosure agreements (NDAs) in cases of sexual harassment and discrimination.
Minister for Equality Roderic O’Gorman said the research would be conducted to ensure “we are properly identifying and addressing this issue” while not preventing an individual employee from making their own choices.
He was speaking following the introduction of legislation by Independent Senator Lynn Ruane to ban NDAs which she said are used across all sectors.
“It is so widespread and yet so hidden because people are actually terrified to speak out against them,” she said.
The Government will not oppose Ms Ruane's legislation but has concerns about some of the wording, which Mr O'Gorman said could have "unintended consequences". He acknowledged the comments of his party colleague Senator Vincent P Martin that it was a "measured piece of legislation".
The Minister said his department would liaise with Ms Ruane on the research she had conducted and asked for “a little time” for his own department’s to be conducted because “there is not much known about the extent of this issue”.
The Minister said there is no legislative provision in place for NDAs in employment law but “I do understand they are used quite commonly for protection or business confidentiality”.
Ensures silence
Ms Ruane described NDAs as legal agreements that on a legal basis ensure silence and protect institutions and perpetrators. She said victims are never allowed to speak to their family or a therapist about their experience or to report incidents to police or regulatory authorities.
She said “it is simply untrue and a further manipulation of a victim to imply that settlements require NDAs. They are required to protect employers’ reputations and perpetrators’ identities. If it was in the best interest of the victim then it is only the victim they would protect.”
“Colleges or firms don’t want to damage their reputation by allowing someone to speak out,” she said. “I think it’s very sad that anyone would want to build their reputation by silencing victims.”
The Trinity College Senator said that under the Employment Equality (Amendment) (Non-Disclosure Agreement) Bill all such agreements on would be banned other than those requested by the victim to protect their own confidentiality.
Ms Ruane said that if passed it would be one of the most comprehensive regulations of this area in any jurisdiction in the world and “would allow Ireland to become a real leader as we continue to shine a light on the treatment of the marginalised at the hands of the powerful”.
Best interests
Extensive research on the subject revealed “the misconception that these are in the best interests of the victim”.
“That is how it’s framed to a person at probably their most vulnerable point after weeks, months, years of bullying, sexual or gender-based harassment.”
Independent Senator Alice Mary Higgins said "crucially NDAs don't just compound abuse of a victim, they also represent an abuse of the law".
They were originally designed to protect trade secrets but “became weaponised as a tool to suppress human rights”.
She said the real trauma begins for victims after signing an NDA because “you cannot speak to a therapist or your family”.
Fine Gael Senator Mary Seery Kearney, a solicitor, said she had not come across such agreements and she expressed shock that any lawyer would be involved in their use in sexual harassment or discrimination cases.
Ms Seery Kearney said “we should write to the Law Society and the Bar Council” to ensure it is included in the code of conduct that such agreements should not be used.
