Minister O’Gorman publishes report on Non-Disclosure Agreements (NDAs) and their use in discrimination and sexual harassment disputes

Minister for Children, Equality, Disability, Integration and Youth, Roderic O’Gorman, has today published a report: The prevalence and use of Non-Disclosure Agreements (NDAs) in discrimination and sexual harassment disputes. The report, produced by officials in the Department of Children, Equality, Disability, Integration and Youth, investigates the use and prevalence of NDAs, with a specific focus on cases of alleged sexual harassment or discrimination in Ireland and a number of other jurisdictions, including the UK, USA, Canada and Australia. The report draws together what is known about NDAs in order to provide a resource to policy makers in their deliberations about any future regulation of their use in the Irish context.

Some of the main findings include:

NDAs are commonly used in a range of contexts within Ireland and other jurisdictions; however the inherent secrecy of NDAs presents a challenge to researchers and policy makers.
In all jurisdictions examined, public attention has focused on the use of NDAs in the context of sexual misconduct within employment relationships.
NDAs are often signed in contexts in which there are significant power imbalances between signatories.
Many feel that change is needed in relation to how NDAs are used. Some commentators and practitioners are in favour of the effective prohibition of NDAs in cases of sexual harassment or discrimination, while others favour their regulation, but still see an important role for them in the ethical resolution of disputes.

Welcoming the report, Minister O’Gorman said:

“I am delighted to announce the publication of this report, which is the first of its kind in Ireland. I would also like to thank my colleague in the Seanad, Senator Lynn Ruane, for the attention she has brought to this issue through the introduction of a Private Members Bill. The use of NDAs to silence victims of sexual harassment or discrimination is an issue that has rightly come under increased scrutiny in recent years.

"Given the many brave women who shared their #MeToo experiences, thereby lending their voice to those silenced by NDAs, it is particularly appropriate that this report be launched on the eve of International Women’s Day.

"As NDAs are confidential agreements, they are notoriously difficult to research, so this report is an important step to learning more about this key Equality issue and will help to inform our policies.”

ENDS

Notes to the Editor:

Key themes explored within the report include: the impacts of signing NDAs on signatories, at both personal and career level; wider organisational and societal impacts; NDAs as a condition of employment/pre-emptive NDAs which prevent signatories from speaking freely about their experiences; and two broad legislative approaches proposed by stakeholders and campaigners, 1. the prohibition, and 2. The regulation, of the use of NDAs in circumstances of sexual harassment or discrimination.

The prevalence and use of Non-Disclosure Agreements (NDAs) in discrimination and sexual harassment disputes