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

This report was produced by the REU in the context of growing public awareness of the potentially unethical use of Non-Disclosure Agreements (NDAs), and the ongoing review of Ireland’s Equality Acts. The research was also undertaken in the context of the introduction of a Private Member’s Bill designed to regulate the use of NDAs: the ‘Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 (Bill 82 of 2021), with Senator Lynn Ruane providing input to the development of the report.

The objective of the report is to draw 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. The report examines experiences of NDA use, 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, the first of its kind in an Irish context, presents a review of the literature, and thematic overview of the REU team’s engagement with informed stakeholders.

The following key themes were identified, and are discussed in detail:

• Power imbalances between signatories
• Negative impacts on complainants
• NDAs as a condition of employment
• Impacts on signatories’ careers
• 3rd party effects: organisations and society
• Legislative approaches: prohibition or reform?

The research conducted for the report indicates that NDAs are commonly used in a range of contexts within Ireland and other jurisdictions. The unethical use of NDAs is experienced at individual, organisational and wider societal levels. The report describes how 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 a role for them in the ethical resolution of disputes.

The report also finds that patterns of sexual harassment and discrimination are difficult to identify due to the lack of transparency around the use of complaints, settlements, and NDAs. Therefore, the report includes a section dedicated to suggested methods for further research.