Non-Disclosure
Agreements and the Silencing of Sexual Harassment Survivors
Introduction
In the evolving landscape of workplace rights and
gender justice, Non-Disclosure Agreements (NDAs) have emerged as both a shield
and a sword. Originally designed to protect trade secrets and confidential
information, NDAs are increasingly used in settlements involving sexual
harassment allegations. While companies justify NDAs as necessary for
reputation management and dispute resolution, critics argue that these legal
instruments often muzzle survivors, enabling a culture of silence and repeat
offences. In a post-#MeToo world, where the call for transparency,
accountability, and survivor-centric legal reform has grown louder, the role of
NDAs deserves urgent scrutiny. This article explores the use of NDAs in sexual
harassment cases in India and abroad, their legal enforceability, ethical
implications, and potential paths forward.
Understanding
NDAs: Origins and Evolution
A Non-Disclosure Agreement is a legal contract
between parties that restricts the disclosure of certain confidential
information. In commercial contexts, NDAs serve legitimate purposes such as:
- Protecting trade secrets and intellectual
property,
- Maintaining the confidentiality of
negotiations or partnerships,
- Preventing leaks of strategic or financial
data.
However, in the realm of employment law and sexual misconduct, NDAs are often embedded
within settlement agreements, preventing survivors from discussing the
harassment, the identity of the accused, or even the fact that a settlement
occurred.
NDAs in
Sexual Harassment Cases: A Legal Grey Area
In India, there is no explicit law regulating NDAs
in sexual harassment matters. However, survivors who approach the Internal
Complaints Committee (ICC) under the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) often face pressure
to sign NDAs as a precondition to settlement, especially in corporate setups. While
the POSH Act encourages conciliation,
the law prohibits monetary settlements at the conciliation stage. Yet, in
practice, informal settlements are common, often accompanied by gag clauses.
Courts have rarely scrutinized these agreements, and their enforceability
remains ambiguous in cases involving fundamental rights.
In contrast, jurisdictions like the United States and United Kingdom have
seen increasing legal pushback against NDAs used to silence sexual harassment
survivors. For instance:
- In California,
a 2019 law (SB-820) prohibits NDAs in sexual harassment, assault, or
discrimination settlements.
- The UK’s Equality and Human Rights Commission
(EHRC) issued guidance discouraging employers from using NDAs to cover up
unlawful behavior.
Ethical
and Constitutional Concerns
1. Freedom
of Speech and Expression (Article 19(1)(a))
Gagging survivors through NDAs can amount to a
violation of their fundamental right to freedom of speech, particularly when
the accused continues to hold positions of power and poses a continued threat
to others. Courts in India have yet to definitively rule on the constitutional
validity of NDAs in this context, but the principle of constitutional morality
may weigh against them.
2. Public
Interest and Recidivism
Silencing survivors shields perpetrators from
public accountability, allowing them to reoffend with impunity. There is a
strong public interest in ensuring
that those accused of repeated sexual misconduct face scrutiny, especially if
they occupy leadership roles in government, corporations, or educational
institutions.
3. Power
Imbalances
NDAs are often signed under duress, especially when
the survivor is economically or socially vulnerable. The inherent power asymmetry between the
employer and employee renders the voluntariness of such agreements
questionable.
Judicial Trends and Indian Case
Law
While Indian courts have not directly addressed the
enforceability of NDAs in sexual harassment matters, some judicial
pronouncements offer indirect insights:.
- In Vishaka v. State of Rajasthan (1997),
the Supreme Court established that sexual harassment is a violation of
fundamental rights under Articles 14, 15, and 21. The logic of protection against systemic silencing
is embedded in this jurisprudence, potentially laying grounds for a future
challenge to NDAs.
Corporate
Culture and Institutional Complicity
Many corporations in India have adopted NDAs as
part of their "damage control" strategy. Rather than addressing toxic
work environments, they offer financial settlements bundled with
confidentiality clauses to avoid reputational harm. This has been evident in
sectors such as:
- Media and entertainment,
where powerful figures have repeatedly been accused,
- Startups and tech companies,
where informal work structures limit transparency,
- Education and academia,
where hierarchical relationships create fertile ground for abuse.
This normalization of private settlements
contradicts the spirit of the POSH Act, which is meant to ensure institutional
redressal, not covert deals.
Comparative
Perspective: Global Pushback
Ø
United States
After the #MeToo movement gained traction, states
like New York, New Jersey, and California passed laws restricting the use of
NDAs in harassment settlements. The federal Speak Out Act (2022) now
prohibits pre-dispute NDAs in sexual assault and harassment cases.
Ø
United Kingdom
The EHRC in 2020 released strong guidance
discouraging the use of NDAs that prevent victims from reporting or speaking
about their experiences. The move was prompted by high-profile cases such as
the Harvey Weinstein scandal, where multiple survivors were gagged
through NDAs.
These examples demonstrate a clear international
trend: survivors must not be silenced
in the name of legal protection.
Arguments
in Favour of NDAs: The Other Side
Despite criticisms, some argue that NDAs:
- Provide closure to survivors who wish to move
on quietly,
- Encourage quicker settlements and reduce legal
costs,
- Protect reputations in unproven or false
accusation scenarios.
While these arguments have merit in certain cases,
the core issue is whether
confidentiality is truly voluntary or coerced, and whether it undermines
broader goals of workplace accountability.
Policy
Recommendations and the Way Forward
Ø Legal
Reform
Introduce legislation or amend the POSH Act to
prohibit NDAs in sexual harassment cases where they prevent survivors from speaking
publicly or warning others. Include mandatory judicial oversight in
private settlements involving sexual harassment claims.
Ø Survivor
Consent Safeguards
When NDAs are used, ensure the survivor has received independent legal advice and has a clear understanding of the implications. Prohibit
employers from making NDAs a condition for financial settlements.
Ø Public
Registry for Serial Offenders
Create a confidential reporting mechanism to track
repeat offenders across organizations, similar to sexual offender registries in
some countries.
Ø Judicial
Clarity
Supreme Court or High Courts should issue binding
guidelines on the enforceability of NDAs in sexual harassment matters,
balancing freedom of expression and privacy.
Ø Corporate
Best Practices
Companies must shift from legal containment to
cultural transformation — transparency, bystander training, and survivor
support are more effective than secrecy.
Conclusion
Non-Disclosure Agreements, when used in sexual
harassment cases, operate at the murky intersection of law, power, and silence.
While they may provide temporary relief or resolution, they often come at the
cost of justice, truth, and long-term safety for others. India stands at a
legal crossroads: it must decide whether to continue tolerating legal
instruments that protect reputations over rights or to evolve a jurisprudence
that centers survivors and prioritizes systemic reform.
As the demand for transparency grows and survivors
refuse to be silenced, it is time for lawmakers, courts, and corporations to
rethink the legitimacy of NDAs in cases of sexual misconduct. True justice
cannot thrive in silence.