“Can’t Buy My Silence” – why NDAs are bad for the public interest

Three cases tell the tale of Non-Disclosure Agreements (NDAs) in Nova Scotia.

In the wake of the new PEI bill which restricts the use ofNDAs to silence complainants in sexual misconduct and discrimination cases, other provinces will now have to consider doing the same.  PEI’s new law will allow NDAs to be imposed in cases of harassment and discrimination only if the complainant wishes to do so. If the person wants to negotiate an NDA, there are clear requirements of what is acceptable, and at any point the complainant can still break their silence.  

Pablo Picasso (1962) Rape of the Sabines. In the collection of the Guggenheim, New York City.

PEI is the first Canadian jurisdiction to take on the unfairness of NDA’s, and its effect of not only silencing victims of harassment, sexual assault and discrimination but also allowing perpetrators to go on to new locations to repeat their misconduct. 

It’s now time to look at three cases that Equity Watch has monitored in which NDAs have played a role.

Kirk Johnson, “driving while black”

Seventeen years ago, Kirk Johnson from North Preston, NS won his case before a NS Human Rights Board of Inquiry. Johnson, a Black man, had been stopped 29 times in  three months for “driving while Black.”  Two police forces, HRM police and the RCMP, participated in stop checking Johnson, and impounding his car for spurious reasons.  Johnson had had enough; he launched a complaint at the Nova Scotia Human Rights Commission (NSHRC).  Johnson earned a good living as one of the top-rated heavyweight fighters in the world.  He had represented Canada in the 1993 Olympics in Barcelona. He decided to hire a lawyer to represent him.  His lawyer recommended he accept a settlement offered by the police, which would have entailed signing an NDA, rather than go to a public tribunal.  Johnson was told he would get more money in a settlement than dragging through court.

Johnson refused.  He wanted to set an example that the police could not get away with intimidating and pushing Black people around.  The hearing took place over nine days; during that time the media reported on the parade of police who in their sworn testimony contradicted each other in details of the take down of Johnson and his cousin (who was driving Johnson’s car) and the impounding of his car.

As Johnson pointed out, he earned a decent living, and was not depending on a high financial settlement.  In the end, the adjudicator found that race was a factor in the stop-checks, and ordered the police to pay him $10,000;  his cousin received $1,000 for inconvenience.  In 2004, that was at the higher end of payouts ordered by human rights boards of inquiry.

Rape of the Sabine Women by Jacopo Ligozzi (British), painted from 1605 to 1615. It’s in the Detroit Institute of Art.

Liane Tessier: firefighter who named systemic discrimination

Fast forward 14 years to 2017.  Liane Tessier, a former Halifax firefighter, had fought 10 years to have her complaint of sex discrimination and sexual harassment heard at a Human Rights Board of Inquiry.  In 2007 the NS Human Rights Commission had decided to drop her case.  Tessier spent nearly $20,000 of her own money to pay a lawyer to argue for that decision to be overturned.  The appeal judge ruled in Tessier’s favour and ordered the NS Human Rights Commission to investigate the case again with a new investigator.   Tessier’s case was slated for a Board of Inquiry in 2017.  However Halifax Regional Municipality (HRM) offered her a settlement which she negotiated to include an undisclosed sum of money, a public apology by the Fire Chief, and by HRM, and six changes to policies and procedures aimed at reducing sex discrimination in the fire service.  The Fire department and HRM were also forced to publicly admit to systemic discrimination.  All that was withheld from the public was the financial settlement.   Today, Tessier not only talks openly about her case to the media, in her blog and in public presentations,  but she is also  a founder of Equity Watch, an organization which fights bullying, discrimination and harassment in the workplace.   She has continued to serve and promote the public interest.

Abduction of the Sabine Women by Dr Zeuss (Ted Geisel, US) 1930.

“Kate” who was pressured to sign an NDA

Now let’s look at 2021.  A 35-year-old woman I’ll call Kate, who was an administrative officer in a large company, was sexually assaulted by a colleague at a party held at the workplace.  Kate complained to the employer; she also went to the police.  Her employer explained that since the man had just quit his job, there was no realistic way to hold him to account.  The police told Kate her assailant had fled the country and it was too difficult to pursue him.  Her employer offered Kate another position in a different branch.  But she felt she could not go back to work as she did not trust her employer, since they refused to address the issue of her sexual assault and safety in the workplace—despite having their own policies. 

Her only option was to make a complaint to the NSHRC.  Kate had been diagnosed with PTSD;  she was traumatized by the attack and worried about her employer’s refusal to address her safety and security.   Kate needed money because she felt she could not return to her job, and had no idea when she would be ready to get a new job.  The employer offered her a sum of money, in exchange for an NDA. Her lawyer advised her that the financial settlement would take her through a couple of years of unemployment, and that is what she considered.   She signed an NDA which was brokered through the NSHRC. 

Today Kate cannot discuss the settlement.  She cannot talk about her experience; she cannot talk about the financial settlement;  she cannot disparage or blame her former employer in any way or their policies; she cannot write or speak about the discrimination, the sexual attack (on company property), nor any aspect of her case.  These are the typical terms of NDAs.  Kate had to fight to get permission to discuss the issue privately with her therapist.

These three cases show several things:

  1. Johnson and Tessier wanted to show there was systemic discrimination. In going public, they were able to perform a public service to others.
  2. Each was in a better financial position than Kate.  Johnson and Tessier each decided to forego a possibly bigger financial settlement so that they could use their voices to amplify and rectify injustice.
  3. Kate too had wanted to expose the sexual attack as a warning to others, but was pressured to sign an NDA for financial reasons. 
Sculpture of the Rape of a Sabine Woman by Giambologna, now in the Loggia del Lanzi in Florence, Italy. A Flemish artist, Giambologna worked in the court of Cosimo de’ Medici in Rome. Giambologna sculpted this in marble from 1579-1583

The terms of NDAs are so onerous, that there is little hope of the victim ever exposing what happened.  That is a huge public disservice.  In a case of workplace sexual assault or discrimination, the employer will likely not be held to account.  So there will be no public call for improving conditions and demanding better behaviour.   Sexism and racism are pushed underground.  The perpetrator may go on to offend again.

NDAs mean there are few incentives for the desperate situation to change, unless legislation makes it so.

Judy Haiven is a founder of Equity Watch, an NS organization which fights discrimination, bullying and harassment in the workplace. 

“Can’t Buy My Silence”

is a global campaign committed to end the minuse of NDAs to buy victims’ silence. See their website here. Equity Watch supports this campaign.

Featured Painting Above: The Rape of the Sabine Women by Nicholas Poussin (1637-1638). Musee du Louvre, Paris. To learn more about the Sabine Women you can read about the rape or abduction of the Sabines in a short video here or here.

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