Should non-disclosure agreements be illegal in cases of sexual harassment? Some Canadians think so

Zelda Perkins Breaks a Non-Disclosure Agreement in 2017 and went public about the alleged actions of her former boss, the now infamous filmmaker and convicted sex offender Harvey Weinstein.

Now she wants to severely restrict the use of non-disclosure agreements, or NDAs, and is working with Julie Macfarlane, Professor Emeritus of Law at the University of Windsor, to pressure governments to take action.

The two women say NDAs act like verbal orders and prevent people, when used, for example, in cases involving workplace harassment or discrimination, from ever speaking out, even to family members.

“Having the potential to spend money using an NDA is what the problem is at the moment, because people are told they will not receive any compensation unless they sign the NDA,” Macfarlane said.

Legal documents that prevent people from sharing information about a specific case or situation, NDAs are commonly used to protect commercial trade secrets and intellectual property.

But where Macfarlane and Perkins are concerned is their use in cases where an NDA can be used to cover misconduct.

The campaign helped politicians make accounts in Canada and abroad. Prince Edward Island became the first province to introduce legislation last November, and the Manitoba Liberal Party will table a similar bill in March. Sen. Marilou McPhedran also intends to submit a bill to the Senate. A spokesman for Ontario’s attorney general, Doug Downey, said the government was aware of the PEI bill but did not commit itself to similar legislation.

In addition to supporting governments to pass legislation, Macfarlane and Perkins have launched a website, cantbuymysilence.comwhere they set out the issues surrounding NDAs and present testimonies from individuals who have signed them.

“Yes (Weinstein) was a monster, he was punished, and there are enough people shouting at him about it,” Perkins said in an interview with the Star, “but for me the bigger monster in the room was the process, the system, and the law that protects these people and continues to protect these people every day. ”

Perkins, a former assistant to Weinstein, signed an NDA in 1998 when she was 24, after confronting Weinstein about the alleged attempted sexual assault of colleague Rowena Chiu, who also signed an NDA. Both women have since broke them.

Perkins described herself as naive at the time, believing that signing an NDA and compensation would mean that the conditions set forth for Weinstein would be respected, including that he would seek therapy and be fired if he ever tried misconduct again.

“We were just kids, and we were told that this is how you do it,” she said. Perkins has never been legally prosecuted since breaking the NDA in 2017.

Prince Edward Island’s legislation, which comes into force in May, is similar to a bill being studied in Ireland, where Macfarlane and Perkins’ campaign is helping.

This removes in most cases the possibility of NDAs from settlements. But the bill provides for negotiation for compensation and allows an accuser to apply for something similar to an NDA under certain conditions, including: they have received independent legal advice, the agreement contains a list of people with whom they may always speaks, and the agreement is not “demonstrable” against the public interest.

“It is really difficult to justify why our survivors of misconduct, harassment, discrimination, racism would want to be silenced,” Lynne Lund, LPEI Green Party MPL, who tabled the bill, said in an interview. “It’s really hard to justify how it serves anyone’s interests, except offenders.”

Lund’s bill was unanimously approved by the PEI legislature. Manitoba Liberal Party leader Dougald Lamont, whose party holds only three seats in the legislature, said he hopes to see similar cross-party support for his party’s bill that will be tabled this spring.

“It’s fundamentally a matter of justice, and justice that is avoided because people are forced into silence,” he said.


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