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.