Australian Human Rights Commission calls for end to NDAs in workplace sexual harassment cases

A major report into workplace sexual harassment has called for new laws to heavily restrict NDAs in order to protect victim-survivors.

The Australian Human Rights Commission has called on the government to restrict the use of confidentiality and nondisclosure agreements in workplace sexual harassment cases, and hit employers with civil penalties if they fail to take proactive steps to prevent discrimination and sexual harassment.

The two recommendations were made in the independent body’s Speaking from Experience report into combating workplace sexual harassment.

Out of the 11 recommendations, the body said Australian laws should mirror legislation in Ireland that prevent workplaces from imposing NDAs and confidentiality agreements on victims, which are commonly used as a condition of receiving compensation for harassment.

Sex Discrimination Commissioner Anna Cody said while the use of the contracts were “decreasing” she said lawyers and HR departments were still “unaware that they are optional”.

“We’re saying restrict them so they’re not used unless the person who’s experienced the workplace sexual harassment requests it,” she told NewsWire.

Sex Discrimination Commissioner Dr Anna Cody said NDAs and confidentiality agreements should be restricted in sexual harassment cases and only used when requested by the victim. Picture: NewsWire Handout

“I think they are mostly used to protect the reputation of the harasser and of the employer but I think (we need to remember) that employers will gain their reputation from taking action against harassers.”

The report also called on the Albanese government to amend the Australian Human Rights Commission Act 1986 to be amended to include civil penalties for employers who breach their positive duty, or their legal obligation to eliminate, as far as possible, all forms of sexual discrimination, workplace sexual harassment, sex based harassment and victimisation.

It said this may “place greater responsibility” on workplaces and organisation to address workplace sexual harassment,” and put the onus on regulators to enforce laws, while also shift “the responsibility away from individuals to bring legal action”.

Dr Cody said the penalties would ideally be financial in nature and give regulators another “tool” to hold employers to account.

“If we had to go to court and there was still non compliance, it just adds it’s an additional possibility that we could be seeking in terms of them complying with their duties under the Sex Discrimination Act and the positive duty within that,” she said.

The 88-page report, which included interviews with more than 300 Australian workers with lived experience, included a total of 11 recommendations aimed at reducing barriers to information, safety and to workers accessing support after facing harassment.

It also called for removing impediments for victim-survivors being heard and barriers to justice and accountability.

Among the recommendations were also demands for a specialist organisation to deliver “accessible and culturally appropriate education and outreach on workplace sexual harassment,” plus a national media campaign to drive cultural and behavioural change.

Speaking about the report more broadly, Dr Cody called on law-makers to listen and act on the advice given by the victim-survivors who were interviewed.

“We’ve listened to over 300 people and really learned deeply about the different ways in which workplace sexual harassment happens,” she said.

“Harassers really do focus on those who are most marginalised in a workplace, such as culturally, racially marginalised people, LGBT+ people, First Nations people and we really need to understand that the ways in which that happens,” she said.

Originally published as Australian Human Rights Commission calls for end to NDAs in workplace sexual harassment cases