Silencing at Work: Sexual Harassment, Workplace Misconduct and NDAs

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Abstract This article draws on qualitative analysis of a small interview study and of oral evidence to the Women and Equalities Select Committee (WESC) of the UK Parliament, to explore and contextualize the use in the United Kingdom of NDAs in settlements to silence allegations and experiences of sexual harassment and workplace misconduct. This demonstrates the central place of NDAs in the failure of individualist individualized workplace protections effectively to combat this behaviour. Several factors emerge as potentially significant to the ubiquity and substantive content of NDAs in settlements: the influence of modern, technologically inflected routinization and sheer paperwork within organizations and lawyering; interactions between the law in practice and long-standing economic, social and cultural means of subordination, including of women and racialized groups. Illustrations comprise, first, employers’ systemic dominance, mediated by lawyers, being enacted and reinforced through frequent imposition of NDAs, including to protect serial wrongdoers, and, secondly, that the shame and career risk attached to people who experience and complain of ill treatment (not alleged wrongdoers) mean claimants themselves often need the protection of NDAs in settlements. Still, suggestions in the evidence of some organizations altering their use of NDAs provides an invaluable opportunity for future research to illuminate the drivers and long-term consequence of this legalized silencing and of what ought to be done about it. Organizational variety also shows that employers are already in a position differently to reconcile the innate tensions the data exposed between individual, employer, and societal interests in whether mistreatment at work is silenced or exposed. This leads to my final argument that, whatever legal reform occurs, employers and their lawyers ought already to take the obvious first step towards changing the culture, of shifting their default position away from routinely using law to silence complaints about sexual harassment and workplace misconduct. If employers are not even willing to take this small initial step, and their lawyers to back them up, this will raise serious questions about current public commitments finally to tackle workplace wrongdoing, and grave doubts that anything much is going to change in this dimension of working life.