Our Take: The NDA paradox is a win for transparency, but a loss of victim choice

Those who face harassment or abuse in the workplace should speak up.

A surface level belief that, I bet, if asked, few (if any) people would disagree with. 

Although some leaders really do champion transparency, holding firm the belief that misconduct should be exposed, others find ways of sweeping it under the carpet. 

Cue: NDAs. 

First brought into the business world to protect trade secrets in the 1940s, the use of NDAs have evolved.

Sometimes referred to as “gagging orders,” NDAs have been used in more recent years to legally restrict individuals from disclosing information, for example, regarding settlements, employment disputes, or sometimes, inappropriate behaviour.

Although they were (and should) be used to maintain privacy and confidentiality for business affairs, sometimes they’re used to literally “gag” people – victims – to silence. 

That’s why some countries, such as the US, UK, Ireland, Australia and Canada, are either looking to, or have taken measures to stop this from happening.

But has this swung the pendulum too far?

A long journey ahead

One of my favourite sayings in life is: “Good or bad, hard to say.” Meaning things that seem good can be nuanced with bad, and vice versa. 

The NDA ban is a perfect example of how this can be true.

There’s no denying that the banning of NDAs is a monumental win, and it’s all thanks to the bravery of women such as Zelda Perkins and Laura Madden.

At just 24, Perkins, a former assistant to Harvey Weinstein, was legally gagged from talking about the sexually predatory and abusive behaviour she had endured from Weinstein. 

Breaking her NDA in 1998, Perkins spoke out about the egregious terms she was forced to agree to, to then campaign for the banning of NDAs to be used to cover harassment and abuse. Madden did the same.

But as I sit here, trying to look at the bigger picture, of course I’m overjoyed that women will no longer lose their voices.

My concern, however, does lie with those who would opt for an NDA. To those who have unfortunately fallen victim to workplace predators, but would prefer a quieter path to justice.

Completely removing NDAs may force victims to engage in lengthy public processes, such as an Employment Tribunal or court case, which means detailing their experiences to the world. 

This itself can be traumatizing and prevent healing.

What’s more, speaking out is so highly encouraged because it’s hard – and it’s hard for valid reasons.

Sharing deeply traumatizing and personal information may leave women feeling vulnerable, opening them up to external scrutiny and judgement. Sadly, not everyone gets it. 

And if we’re being really honest, we all know the workplace wasn’t designed equally. Many women feel that they have to work harder and smarter to reach the same goal posts as men. 

(If you don’t believe me, McKinsey’s Women in the Workplace 2024 highlights that only 81 women are promoted to every 100 men, and that women hold only 30.6% of leadership positions, despite representing 43.4% of the global workforce). 

So, for some women, signing an NDA may be their idea of protecting their hard climb up the career ladder – or even a layer of protection for future perceived judgement. 

Whether this is right or wrong, I don’t believe we have a right to say. Not until we’re in or have been in this position, can we say or judge what we’d do. 

So my issue here isn’t the fact that the tape around women’s mouth has been ripped off – far from it. It’s that we still haven’t been given a choice. Autonomy. 

Although I of course agree that the banning of NDAs is unequivocally a good thing, like I said earlier, the bad can still co-exist.

And in this instance, it’s that I fear that some people will see this as the issue being ‘ticked off’ – solved. 

It’s not. Not even nearly. 

In my view, we’re reached a crucial milestone – but the finish line branded: ‘Equal rights and justice for women in the workplace’? That’s still out of sight.