By Lauren Phillips | The Coast
Dalhousie University in Halifax has made a significant change to the way it responds to cases of sexualized violence involving members of its community.
In the week following several events hosted by the group Can’t Buy My Silence, or CBMS, in Halifax—including training and information sessions on banning the misuse of non-disclosure agreements because of their harmful consequences, and an event specifically geared to ending their misuse in universities—Dal updated its sexualized violence website. About a third of the way down the page, there’s now a line of bold text that reads, “Dalhousie will not ask a survivor to sign an NDA in a sexualized violence case.”
Although this line was added at the beginning of October, Dal hasn’t publicly announced or explained the change. The university also hasn’t said whether it will sign the CBMS university pledge, which would further commit Dal to not using NDAs “to silence people who come forward to raise complaints of sexual harassment, discrimination, abuse or misconduct, or other forms of harassment and bullying,” and not just in cases of sexualized violence.
NDAs, writes CBMS, are also known as “gag orders” or confidentiality agreements. They’re contractual agreements designed in the ‘90s in Silicon Valley, California, to protect trade secrets. However, as CBMS puts it, “NDAs are now pervasive in workplaces—including universities—where they are used in settlement agreements to silence victims of abuse and harassment.”
CBMS writes that, according to estimates in the US and Canada, “up to one-third of employees have signed an NDA” and that these “enable secret settlement agreements that are used to hide wrongdoing, and sometimes criminal acts, by buying the silence of victims or whistleblowers. Victims are regularly pressured to sign agreements that protect perpetrators in order to protect their own privacy; sometimes they have to sign just to get the money they’re owed.
“This enables perpetrators to move to other organizations without any record of their abusive behaviour and allows abusive organizations to continue covering up mistreatment.” CBMS writes that “since our campaign began, we have found the use of NDAS in many more situations than we had first imagined,” including “at the ‘resolution of a dispute, to cover up a situation that the other side does not want to be publicly known” which could mean a resolution of a lawsuit or a workplace grievance or complaint; preemptively, or when signing an employment contract; and at the outset of a workplace investigation. CBMS provides a breakdown of where NDAs often appear here.
The threat of signing an NDA also prevents people from raising complaints of harassment or discrimination in the first place, CBMS says. “This is exactly the opposite of what #MeToo, Black Lives Matter, and related movements have been encouraging, and is significantly undermining public discourse about sexual harassment, racism, disability discrimination, homophobia and other misconduct.”
NDAs typically prevent survivors from speaking to family, friends, colleagues “and even therapists,” writes CBMS, “and add to the layers of trauma the person has suffered. Case law even supports the continuation of an NDA after the death of a perpetrator.” NDAs are forever.
CBMS was co-founded by Zelda Perkins—the first person to break her NDA with Harvey Weinstein in 2017—and distinguished professor of law Julie Macfarlane, who left the University of Windsor in 2020 after discovering the school had used an NDA to hide the details of a termination settlement with a former colleague, who was dismissed following complaints of harassment of students and who then went on to teach out of the country. Macfarlane later resigned in protest.
Perkins and Macfarlane launched the CBMS campaign in 2021. Since then, it has pushed for anti-NDA legislation in North America and the UK, and created two anti-NDA pledges: one for businesses, the other for universities.
CBMS’s website offers a platform where people affected by NDAs can share their experiences without fear of reprisal. At the same time, the campaign raises awareness about the problems of NDAs. It organizes for legislative reform to ban this misuse of NDAs in settlement cases involving discrimination, harassment and all other forms of abuse.
There’s a prevalence of NDAs as a standard “in many universities’ complaints procedures,” Macfarlane told The Coast in September. “In a lot of cases, you’ve already bound yourself to an NDA before you’ve begun an investigation or a complaint.”
The pledge began, Macfarlane said, “because we felt that universities were the last institution that should be using NDAs. This is where young people go to be educated and to learn about how they want to be in the world.” Furthermore, Macfarlane called the use of NDAs “grossly intimidating to students because, usually, the penalty for breach [of an NDA] is expulsion.”
In Canada, PEI is the only province to pass anti-NDA legislation. The effect of the law is that in cases involving harassment, discrimination, abuse or misconduct, an NDA may only be used if the person filing the complaint or grievance requests one.
In Nova Scotia, NDP leader Claudia Chender introduced similar legislation under Bill 144, called the Non-disclosure Agreements Act, in April 2022. The legislation would ban NDAs in cases involving allegations of discrimination or harassment unless requested by the person affected and, even then, meeting necessary conditions, like having a set length of time. It has received support from the opposition Liberals. However, the ruling Progressive Conservative party has thus far not supported the bill, or made supporting the bill a promise heading into the Nov 26 election.
In the absence of provincial or federal legislation stipulating an end to NDA misuse, the CBMS university pledge is a way for learning institutions to ensure that—at least for their employees, students and faculty—this practice will end. In December 2023, the University of King’s College and Acadia University became the first two Canadian schools to sign the pledge, which has four signatories so far.
Dal is not one of them. The Coast asked Dal whether their recent sexualized violence website update is part of its moving towards signing the pledge and why this change wasn’t announced, along with information about NDA misuse.
In an emailed statement, Dal didn’t answer these questions but said it’s “very familiar” with CBMS and “greatly appreciates and respects the work that they are doing around NDAs. Their efforts prompted us to review our own policies, which led to the update you’ve referenced.”
Dal also says it has “communicated to affected individuals that existing NDAs will no longer be enforced by Dalhousie with respect to past cases involving sexualized violence,” and that the university “takes our responsibility to assist and support those who experience sexualized violence, harassment, discrimination, and other forms of misconduct seriously.”
It pointed to the school’s policies towards all forms of misconduct, including Dal’s policy on sexualized violence, harassment and discrimination.
On Oct 3, anti-NDA advocate and Dal employee Jennifer Graves issued a public statement saying, “today, after a lengthy, hard-fought battle, I won my freedom. After years of being silenced by a non-disclosure agreement with [Dal], I am finally able to share my truth.”
Graves wrote that it would take time “to process my new reality and to be able to reflect on what I wish to say about my experiences of sexualized violence and institutional betrayal that have spanned across more than a decade.” She also acknowledged the “countless others bound to these horrific agreements…I see you, I know your pain, I believe you, and please never give up hope that you too, will one day be free.”
At the CBMS university pledge event on Sep 26, Dal’s sexualized violence advisor, Lyndsay Anderson, answered a question at the end of the event about whether Dal was going to sign the CBMS pledge and commit to ending NDA misuse. (Although Anderson was not there in an official capacity to speak for the university, no one else from Dal’s administration was there despite the event happening on its campus.)
Anderson answered that Dal was in the process of updating its sexualized violence policy and would be sharing news soon.
At the same event, Wendy Carroll and Erin Casey spoke about being recently released from NDAs signed in settlements with the University of PEI regarding allegations of sexual harassment against the former UPEI president, Alaa Abd-El-Aziz.
Carroll and Casey discussed three “common misconceptions about NDAs in cases of misconduct: one, that signing them is a choice victims make freely; two, that they help victims move on with their lives; and three, that they mitigate organizational risks.”
To counter the first, they said, “signing an NDA, even with the advice of legal counsel, is rarely a fully informed and free choice” and that “equity and fairness in these cases is an illusion [as] institutions almost always have deeper pockets than victims, as well as all the power to make decisions about a person’s employment.
“The coercive efforts of this imbalance should not be underestimated.”
Refuting the second misconception—that silence helps victims move on—they said, “NDAs actually intensify harm to victims and keep them tied to the past [as] victims of sexual harassment can face profound professional and personal harms.
“There is overwhelming grief and anger which destabilizes victims’ very sense of self and destroys our faith in the systems and communities that are supposed to protect us. Ultimately, people who have been silenced by NDAs eventually break under the burden of carrying other secrets, especially if new allegations emerge.”
The third misconception is that “silencing victims protects an organization’s reputation and serves a greater good for more people.” This, they said, is simply not accurate. NDAs were never intended to cover up misconduct, yet they have become a very powerful and common legal strategy to mitigate the organizational risks of workplace harassment and abuse.
“NDAs don’t mitigate risk,” Carroll and Casey said, “they delay it. And while the risk is delayed, it grows. Perpetrators keep operating. Scandals deepen. Cover-ups become more complex, [but] eventually the truth comes out, and when it does, it can be devastating and very costly. In the case of higher education, these financial costs come from public funds. We estimate the cost of managing risk for a university, in our case alone, was in the millions of dollars.”
Since that event:
- Graves has been released from her NDA with Dal.
- Dal has updated their website to commit to not asking survivors of sexualized violence to sign NDAs.
- Dal has told those affected that existing NDAs will no longer be enforced by the university in past cases involving sexualized violence.
Yet Dal has not announced these changes, shared information on the trauma impacts of NDAs or said whether the school will sign the CBMS university pledge. Graves published a statement on Oct 25, calling Dal’s website update “a step in the right direction” and writing that “as a survivor who has been directly affected, acknowledging change as it comes is important—I also know how important it is to acknowledge when change does not go far enough.”
Graves wrote that Dalhousie’s quiet website change “leaves many questions unanswered” and that this statement is “far different than a commitment from the university to no longer enter into an agreement that includes an NDA [involving] all forms of abuse.” Graves wrote “the latter is the ultimate step that needs to be taken by the university.”
Graves wrote, too, that Dal’s commitment—to not ask a survivor of sexualized violence to sign an NDA—”does not change the fact that the university will still enter into these agreements if they are requested by a survivor who has had the benefit of advice from their legal counsel.
“Many survivors will still request this option on advice of their counsel, who know that offering to enter into a settlement agreement with [an NDA] attached will often increase the damages that are on offer,” with the system as it is today.
Therefore, requiring that NDAs are requested will not stop the harms these agreements perpetuate, wrote Graves, but “will shift the responsibility and blame for any ongoing harm that results…solely on the survivor and their counsel for having requested it.”
Damages for survivors are “one of the few ways legal counsel can secure some form of remedy for the harms their clients have suffered, so that they may start to rebuild their lives.
“Very often lawyers who negotiate these agreements are providing their clients with the best outcome that can be achieved in what is a broken world filled with broken systems that are ineffectual in addressing and preventing harms and providing accountability.”
She wrote, however, that a settlement with an NDA attached as the best option available, “in no way reflects what many would consider to be a fair or just outcome, nor one that is trauma-informed.
“Paying someone off so that they may never speak about their trauma again or warn others, to protect one’s reputation while allowing abuse to continue…is putting people at further risk.”
Therefore, NDAs should be removed as a possible condition of settlement. Wrote Graves, “this is not about removing choice from survivors,” as they can request one-sided confidentiality agreements to ensure their privacy. “This is about abuses that are being covered up that affect the safety and wellbeing of us all.
“NDAs put our collective safety at risk.”
Kristina Fifield is a trauma therapist who specializes in gender-based violence and is part of the CBMS team. She has been advocating for Nova Scotia to pass legislation along with Bill 144 to end the misuse of NDAs.
Fifield tells The Coast that transparency, accountability, action and restorative practices are necessary when looking at the abusive use of NDAs.
“A cultural shift is long overdue and needed within post-secondary institutions that have been using NDAs to silence survivors of sexual violence, harassment, discrimination, racism and other human rights violations cases,” says Fifield. “Transformative leadership is required to stop the continuum of violence and to ensure survivors are never silenced.”
Fifield was at the CBMS university event at Dal on Sep 26, where King’s president William Lahey spoke about why he signed the pledge in 2023. Lahey talked about being at King’s and the work he did before, during and following the case of Wayne Hankey, the disgraced King’s professor who died in 2022, just before his first court date to answer charges of sexual assault dating back to the ‘70s.
“He took responsibility,” says Fifield about president Lahey. “Too often, we do not see individuals within institutions acknowledging their role in the injustices, but Lahey was very transparent and demonstrated learning and unlearning by listening to the voices of survivors of violence. This is vital for the cultural shift that is needed.”
She says Dal’s recent update is a good “first step of many that Dal needs to take,” but Dal still needs to do the following:
- Reflect this change in an updated policy to make it legally binding across the entire university.
- Stop using NDAs in all other forms of violence and harm, including cases of racism, harassment, discrimination and bullying.
- Consider signing the CBMS university pledge that will both “serve as an accountability mechanism to ensure NDAs are not used” and repair the harms that have existed with survivors.
- Release all survivors of their NDAs and “make a commitment to giving survivors their voices back.”
Fifield says that too often in her work with survivors impacted by NDAs, “abusive power dynamics and coercive behaviours exist because institutions are trying to protect their reputations.
“Survivors are left with survival-based decisions and feel pressured to sign NDAs because the employer, their legal team and, in some cases, their union, say these are a standard part of the settlement. This is why solid policy is needed.”
