NDAs and Whistleblowing
Q&A with Dr. Julie Macfarlane
Dr. Julie Macfarlane is a Canadian law professor and Member of the Order of Canada who has won many awards for her work in advocating for access to justice. She's spent her professional life teaching in law schools on four continents, researching and writing, and working on progressive causes. She spoke to Whistleblowing Canada Research Society about her work regarding non-disclosure agreements (NDAs).
Question: What's an NDA, and how is it related to whistleblowing issues?
Julie Macfarlane: An NDA is a legal agreement that was originally created, in the 1980s, to protect trade secrets, but they’re now used to buy the silence of a victim or whistleblower. NDAs are often used by government departments, corporations, nonprofit organizations, public bodies, individuals, anybody, really, to hush up cases of sexual misconduct, racism, pregnancy discrimination and other human rights violations. NDAs say that the signatory will never speak again (ever) about the matter deemed “confidential”.
NDAs are very limiting, but in theory they don't impede people's access to whistleblowing rights. Maybe someone signed an NDA when they were hired into an organization, or maybe they signed it before an investigation, or maybe they had a resolution of a particular case and signed an NDA, but they can still use the whistleblowing legislation to claim that there’s a matter of public interest involved. The distinction between a matter of public interest and an individual experience that’s closed down by an NDA is unclear in law, and many of those who sign NDAs are unaware that they retain their whistleblowing rights. One of the things important to understanding the NDA dynamic is that people who sign them are anxious about breaking them. They're told that they can't even say they signed an NDA. So, many people who would otherwise be whistleblowers, aren't.
And many times, the issue covered up in an NDA is a matter of public interest, not only an individual complaint, especially if the NDA involves someone who was a sexual predator or who was involved in harassment or discrimination, and who ends up moving to another workplace under cover of an NDA. I'd say these matters are in the public interest and not just individual complaints, but the line between those two isn’t clear in law. As a result, we have a whistleblowing system in Canada that looks good on paper but that, actually, doesn't get used often -- and the NDA issue further complicates that.
Q: Can you explain more NDAs and whistleblowing legislation in Canada?
Macfarlane: Some would say that Canada's whistleblowing legislation is among the weakest in the world. It's only for the public service, not for the private sector at all, and it's for only matters seen as being in the public interest or systemic issues that affect more than an individual. However, it's impossible for someone who's being sexually harassed or who's facing a racist supervisor to know that this is a problem affecting a whole organization and other people.
Even though you may have standing to make a whistleblowing complaint, most people are focused on trying to get their own matter resolved. Understandably enough, they're probably having a terrible time at work. Most folks who complain about sexual harassment, bullying or discrimination end up leaving their workplace anyway. They're a long way from feeling that they're an empowered whistleblower, and an NDA, if they signed one, only makes that worse.
Q: What are next steps in terms of enforcement or awareness -- or in terms of updating legislation?
Macfarlane: The reform needed in Canada is to apply whistleblowing legislation to the
private sector. 
The law shouldn't apply only to the public sector. Also, we need people who signed NDAs to know that they can still be whistleblowers. We proposed in the UK, where there was whistleblowing legislation, that every settlement should have at the top, in bold letters, "This doesn't affect your right to make a complaint under whistleblowing legislation." It should also say, "This doesn't affect your right to go to the police." Many issues are potential crimes, and an NDA doesn't suspend your right to report a crime. The first thing to recognize is that if you experienced harassment or some kind of sexual misconduct, it's very stressful and even scary to come forward and report. Because of societal norms, there's often an intense sense of shame, despite the fact that it's not that person's fault and it's the perpetrator's fault.
I'm a survivor myself, and even though it's completely illogical and irrational, you ask yourself over and over again, "Did I do something wrong? Was it my fault?" This is the kind of conversation that takes place in your head when considering reporting in a workplace or going to the police.
Q: Does going to the police help with NDAs and whistleblowing?
Macfarlane: Going to the police doesn't have a good rap among many women and certainly not among survivors. Police are often dismissive or poorly trained, and will discourage somebody from actually going forward to lay charges. This is exactly what happened in the Hockey Canada case. In 2018, after the alleged group assault happened, the victim and her mother went to the police, and we don't know what happened there exactly, but in the end, the police closed the investigation and Hockey Canada said they would investigate internally.
This is typically what happens in assault cases in Canada. We know from the data that police aren't keen on prosecuting sexual offences, because the issue of consent is a contentious one. So, the case goes back to an organization, typically, and they make some sort of "investigation" or "resolution" — and the victim signs an NDA to prevent any reporting or speaking about the matter again. That's what happened in the Hockey Canada case, but what's different there is that the victim has now been released from the NDA. When the public learned about how often Hockey Canada was using NDAs, the strength of public opinion -- and, goodness, it took a while -- eventually led the police to reopen the investigation and lay charges.
Zelda Perkins was the first woman to break an NDA, signed decades earlier, with Harvey Weinstein. With Julie Macfarlane, she co-founded Can't Buy My Silence. Later, Perkins brought attention to the systematic abuse of NDAs in the UK, uncovering an epidemic of misuse, and pushing the England and Wales Solicitors Regulatory Authority to take disciplinary action against the lawyers who created her NDA for Weinstein. Zelda was named a Person of the Year by Time magazine in 2018 and by The Guardian in 2020, and in 2023, she was awarded for her Outstanding Contribution to Gender Equality by UN Women UK. Her character was portrayed by Samantha Morton in the movie “She Said,” which documented her part in the downfall of Weinstein.
Q: How did you and Zelda Perkins team up to create Can't Buy My Silence?
Macfarlane: Before I met Zelda, I was a professor at the University of Windsor, and I caught my institution basically using an NDA to move someone who I knew had been sexually harassing our students. Students had to come to me about the situations. To begin with, the university did the right things: they suspended him, brought in an investigator, and terminated him, but when they settled with him, not only did they give him a large amount of money, but they also gave him an NDA and an assurance that all of his personnel records would be wiped clean, so no one could find out about the many complaints, which had been upheld by the investigator.
I felt relieved, until I started to get phone calls from other law schools asking me about this guy; people knew my work internationally, and they knew me, and so they asked me, "Why did he leave". In that moment I realized the university had given him an NDA, because no one knew his background. I guess I was a whistleblower in that circumstance; I told people they shouldn't hire him, but someone did hire him, although he didn't last long there. He sued me for defamation, and the university hid behind the NDA and refused to support me. It was a ghastly story, and I resigned from the university.
About a month later, I wasn't clear on what I would do, and in the course of my research about NDAs, I met Zelda Perkins, who, in 2017, had been the first woman to break her NDA with Harvey Weinstein. I had a lot of background in activism and legal reform. We connected first on Twitter and then on Zoom at the end of 2020. We immediately realized that we shared the same passions about what NDAs do to people. Also, we both knew that we were relatively privileged white women with a lot of relative power and NDAs had totally messed up our lives and careers, and we thought, "If it's this bad for us, how bad must it be for people who don't understand as much about the law and who are already vulnerable and marginalized." That was the original bond between us. We spent the next nine months putting together a campaign, Can't Buy My Silence, which we launched in Sept. 2021.
Q: What has been achieved with the Can’t Buy My Silence campaign?
Macfarlane: The campaign is moving forward very quickly. I have a fair amount of experience of legislative drafting, and I worked with a team in Ireland in 2021 to draft amendments to Irish equality legislation to restrict the use of NDAs in cases of misconduct, discrimination and harassment. This has become the model NDA bill for Canada. It contains a series of conditions in order for an NDA to be enforceable, and they're reasonable conditions, such as a person who signs it needs to understand what they just read, and the person needs to have independent legal advice about alternative ways to protect their privacy, and the NDA can't harm third parties, and other conditions.
The Official Opposition in PEI (the Green Party) approached us after a high-profile case about a prominent person who, for many years, had been leading the university and sexually harassing women and making NDAs with them. Many people knew it was happening. It was interesting that PEI, a tiny island, was the first province in Canada to pass a law that restricted the use of NDAs.
And today, to bring you up-to-date, there are bills going forward in four provinces -- opposition bills, from private members -- in Ontario, Nova Scotia, British Columbia and Saskatchewan. And there are two governments, Ontario and Quebec, that have announced they shall consult and potentially put their own bills together, and those are both ongoing at the moment.
Then, in Ontario – and this, of course, was of great personal satisfaction for me – we have already managed to amend an ongoing government bill to include a clause that now prohibits universities from using NDAs where there has been sexual misconduct. So, what the University of Windsor did (that blew up my life with a “defamation” suit for outing a known harasser) is now illegal.
That clause is part of Ontario's Bill 26, called "Strengthening Post-secondary Institutions and Students Act" in 2022. We did something similar in the UK with the "University Freedom of Speech Bill" in 2023, which means universities in England and Wales can't use NDAs. But we're going for the whole workforce, not only universities.
Q: How's the survey going, the anonymous survey about the prevalence of NDAs in bullying and harassment?
Macfarlane: Along with a data partner in the UK, Speak Out Revolution, which supports people who suffered harassment and discrimination at work, we have developed a quantitative survey that people can complete anonymously. Obviously, one of the things that's difficult about doing research in this area is that NDAs are secret settlements, so we have to provide people with anonymity when they speak about them. The survey has been going on for a couple of years, and it's got more than 1,400 respondents, most from Canada and the UK.
The results have been consistent right from the very beginning. They show that one in three people who have experienced harassment and discrimination, and they formally reported it, have been asked to sign an NDA. We have three answers to the question, "Have you signed an NDA." One is "Yes," one is "No," and one is "Can't say for legal reasons," and, of course, that's the one people tick, and it means they've signed an NDA. We also know that of the people who don't bring a complaint (and, as I'm sure you realize, people who don't complain, or who decide not to whistleblow, are the majority), in one third of those cases, the reason they didn't complain is because they anticipated they'd have to sign an NDA and they didn't want to.
Then we have 95% of people who did sign an NDA who report mental health consequences, and these are talked about in terms of post-traumatic stress disorder, basically, and an ongoing feeling of isolation and sometimes, guilt, because they can't warn people who could do them harm.
We have almost five times as many women as men, probably because of the preponderance of sexual harassment and also the use of NDAs for maternity terminations (sacking somebody when they're pregnant). That's pretty common, too. Also, with NDAs, there's almost always some sort of financial screw-over in the final compensation package as well.
One other figure from the survey that's powerful is that black women report signing an NDA at three times the rate of white women. There's a clear bias there.
Q: Many whistleblowers and others have contacted you with their stories and testimonials. What do you tell them?
Macfarlane: First of all, I would say that I am optimistic, and so is Zelda. I think that the tide is turning, and I think our work is making a real difference, which I'm proud about. But in terms of direct contact with people who've been through hideous situations – sometimes, years down the road, in some cases they've still not gone back to work, have still not resolved the proper settlement package with their employer – it's very difficult, of course, to listen to those stories, but it's part of what Zelda and I do -- but it's also something that we sometimes have to take a little bit of a break and self-care from, because it's a depressing set of stories. Their stories are only going to get better if we do something about the NDAs and potentially something about whistleblowing also.
You have to bear in mind that people who are in a situation where they feel they're being victimized at work, and/or they're whistleblowers, very often can't afford to pay for a lawyer to bring a case to trial. Very few people can. When they're negotiating with an employer, they're being told, "We'll compensate you. You won't have to go to court. Just sign this NDA." It's tempting, because often people are traumatized or they're in an upset frame of mind, and they just want it all to go away. But the underlying problem is that a threat is being made: "We'll take you to court, and you'll have to hire a lawyer, and we'll bankrupt you if you don't sign our NDA." It's usually a completely empty threat, because if you think about it for a minute, the side that wants the NDA, the employer, often doesn't want to go to court. It's the last thing in the world they want, because all the information that's supposed to be hidden behind the NDA will end up in the public domain. A cover-up is usually much better for an employer's reputation.
What Zelda and I say to people in negotiations is, "If you possibly can, just stand your ground, and eventually, you'll get your settlement without an NDA, because employers don't want to go to court and be out in public."
Q: Are there resources for whistleblowers and others who have signed an NDA or are considering signing an NDA?
Macfarlane: People don't know enough about NDAs yet to be able to use their rights and their knowledge. One of the projects we’ve just started at Can't Buy My Silence is an effort to make information resources and counselling support in many different agencies around the country. We hear all the time from people, "I wish I'd known, or I wish I'd talked to you, before I signed my NDA." We want people to, first of all, note if there's an NDA and think, "Hmm, do I really want to sign that?" And secondly, to have somewhere to go to, not just to us, where they can get some local, important information -- women's agencies, clinics, workplace agencies, these are all good candidates for doing this kind of work.
And we also hope that this will lead to some peer-to-peer support groups, because as more people come forward and identify themselves, they can talk to others, and it can be something that women and men know that there's some support out there, instead of feeling that they've got to stay at home and be totally isolated and keep quiet about everything.
The crazy part is, I've talked to CEOs a lot, and I've asked them, "Would you enforce any of your NDAs against anybody;" They reply, "Of course not. We'd look terrible." And I ask, "Then why have you got them! Why do you keep these people in misery?" I mean, these are the questions we need to start asking more.
A growing number of ally organizations are including information about NDAs on their websites. One is the Canadian Institute of Workplace Bullying Resources. In BC, there's an agency called SHARP Workplaces that has a lot of public information. In Toronto, one of the places where I often refer people to, because they're also trained there to do trauma counseling, is the Barbra Schlifer Commemorative Clinic. In the US, we work closely with Gretchen Carlson and Judy Roginsky, whose organization, Lift Our Voices, has a very good website.