It was the subject of the 2019 Hollywood movie Bombshell – female sexual harassment in the workplace, in this instance Fox News, and the widespread practice of forcing victim-survivors to sign Non-Disclosure Agreements (NDAs).
If you’ve seen the movie, you’ll know that some of America’s biggest television news personalities, including Megyn Kelly and Gretchen Carlson, were silenced by their NDAs from talking about their experiences of sexual harassment at the hands of influential Fox CEO Roger Ailes.
Unfortunately, the story is not fiction. In fact, workers – particularly women – signing NDAs after reporting workplace sexual harassment is common practice in the Australian finance sector.
Now, workers are one step closer to seeing legislation introduced in Victoria that would ban employers from misusing NDAs in cases of workplace sexual harassment.
It’s all thanks to a hard-fought campaign by union members, including those from the FSU.
FSU member and Delegate Isy Fish, who has been involved in the campaign since it started, said she was motivated to get involved after hearing stories of other people’s experiences.
“It was really powerful hearing the impact their experiences have had on their lives and not being able to speak to their mum or their doctor or their psychologist about the sexual harassment they faced,” said Isy.
“Then there’s the impact of seeing the perpetrators in the workplace and how they’re behaving towards other women and not being able to say anything to protect other women who could potentially become victim-survivors.”
The road to this government commitment has been a long one. It started with union members from across various industries getting together to talk about their experiences and planning what actions they would take.
Actions included speaking with politicians at Victorian Parliament, protesting on the streets, sending letters to local MPs and having conversations with family and friends to lend their support and convince their local MPs to take the issue seriously.
“After 18 months they finally did,” said Isy.
The FSU also made a submission to the government on behalf of all members, calling for laws to restrict the use of NDAs in workplace sexual harassment cases. You can read our full submission here.
It’s a damning reality that one in three workers report being sexually harassed in the workplace1. However, only 18% of victims report it2. NDAs and the role they play in adding to a culture of secrecy go some way to explaining this gap.
Rather than addressing the root causes and cultural and behavioural issues in their workplaces, NDAs allow employers to supress illegal and immoral behaviour and buy the silence of victim-survivors.
“A lot of people don’t feel like they are going to be heard,” said Isy.
“Because it’s perfectly legal for companies to sign NDAs and silence predominantly women who are facing this, you don’t ever hear about your colleagues going through the same situation.
“So it’s quite isolating and you feel like you’re the only one.”
Many victim-survivors say they regret entering into an NDA post settlement, with most experiencing feelings of regret between three and six months later3. Moreover, the outcomes associated with keeping complex trauma a secret can result in serious health risks, including post-traumatic stress disorder4.
If passed into law, Victoria would become the first jurisdiction in Australia – and one of a handful in the world – to introduce such a ban. Already, other state governments have signalled their support.
Isy said a ban on the misuse of NDAs in workplace sexual harassment cases will help shine a light on an issue that has largely been kept in the dark – something that should be welcomed by any employer genuine about addressing systemic cultural issues.
“I work with a lot of women who are primary care givers,” said Isy.
“They have a lot of fear that if they stand up and say something – not just about sexual harassment – then it’s going to come back to bite them.
“This is another step to reducing the way women are silenced in the workplace.
“It’s not so much about providing them with a voice, it’s more about removing the tools that organisations use to silence women’s voices.”
1. Australian Human Rights Commission Safe@Work Report 2022
2. Australian Human Rights Commission Time for Respect Report 2022
3. ‘Can’t Buy My Silence’ Campaign 2021
4. Bernadette Baum, ‘Workplace Sexual Harassment in the “Me Too” Era: The Unforeseen Consequences of Confidential Settlement Agreements’ (2019) 31(1) Journal of Business and Behavioural Sciences 4 (‘Baum, Workplace Sexual Harassment’), 9.
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