Transcript
Speaker: Hello and welcome to today's episode of Red Eye. I'm Jane Williams.
Speaker: On the podcast today, Laurentism speaks with Julie McFarlane of Can't Buy My Silence about how and NDAs are used to silence victims of harassment and other forms of discrimination.
Speaker: The organization called Can't Buy My Silence and others are urging the BC government to pass legislation limiting the use of harmful and NDAs. They say that non -disclosure agreements or and NDAs are regularly used in BC to silence victims of harassment, discrimination, and other abuses. And now Attorney General Nicki Sharma says the government is considering all options to stop the silencing of victims of abuse.
Speaker: Dr. Julie McFarlane is co -founder of Can't Buy My Silence. She is a distinguished professor emerita of law at the University of Windsor and the author of Going Public, A Survivor's Journey from Grief to Action. And Julie McFarlane joins me now. Hello, Julie. Hello, Lorraine. Really ah happy to be talking with you today. Well, we appreciate the opportunity to talk about this.
Speaker: Now, Julie, for people who are not familiar with and NDAs or non -disclosure agreements, what are they what were they originally intended for?
Speaker: Well, but that's a great place to start, Lorraine. And let me give you the kind of essentials of what makes a non -disclosure agreement different to other types of confidentiality agreements. So NDAs, as we call them for short, were originally invented, created during the 1970s in Silicon Valley, where there was this extraordinary explosion of new technologies happening.
Speaker: And because it takes a little while for a new process or a platform or a piece of software to be protected by trademark or patent, the and NDA was a contractual agreement that nobody would speak about this very commercially important information if they left one employer and moved to another.
Speaker: And they were intentionally, for that purpose, made to be forever. They were permanent, although obviously they were usually supplanted by an intellectual property protection. But what's happened, Lorraine, over the last 15 years or so, we believe, it's it's really started to explode, is that and NDAs are being used when somebody makes a complaint about discrimination, harassment, or even sexual misconduct.
Speaker: In other words, they're being used to tell people who make these complaints, you cannot speak to anybody about what happened to you. And one really important thing for your listeners to understand that makes NDAs particularly obnoxious is that they're not simply in agreement to protect the confidentiality of the complainant, which is often in these matters extremely important and very you know very valuable to them. But what the complainant is told
Speaker: in a non -disclosure agreement is we will only protect your privacy, your confidentiality, if you agree to protect us, that is the employer, or the organization, or sometimes the perpetrator.
Speaker: if you agree to protect us in exchange. In other words, they are this mutual exchange. I will only protect your confidentiality if you protect mine. And of course, when faced with this, many of the victims of harassment and discrimination and other kinds of abuse, they're frequently without legal representation. They don't always understand quite what this will mean. They're told, this is normal. Everybody does this.
Speaker: which is in fact true now, but it's a normal thing that wasn't intended to be a normal thing because these were intended to protect intellectual property and trade secrets. Well, talk a bit about the breadth of situation in which these and NDAs are now used in ways that harm the people who have signed them.
Speaker: Right. Well, the area that I think most people are most aware of because of the Harvey Weinstein case, which my co -founder, Zelda Perkins, ah was involved in, and other celebrity cases, I think that a lot of people's focus is on, they're used to cover up sexual harassment and sexual misconduct. And that is absolutely the case. They are, they're used extensively in all kinds of complaints in the workplace around sexual misconduct and civil complaints of sexual assault and as well. But they are also being used where people make complaints about discrimination. Racial discrimination is something that your organization is probably not going to want
Speaker: being talked about or associated with them. So when somebody brings a complaint about racism, they are asked to keep silent about it in exchange for a settlement. So effectively, they are being bought off, but it means that the person who ah was responsible for the behavior can continue to behave that way and may be able to move to another organization with nobody knowing anything about their history.
Speaker: We are also seeing them very widely used where people are not being given their full legal entitlement to pregnancy leave and maternity benefits or accommodations under disabilities legislation. These are all rights that workers already have. They're very important rights. I'm sure the BC government is entirely committed to them continuing But when you sign an NDA, you're being told you can't talk about what happened to you, and that includes how much money you got. So that you could be given something, and I see these a lot of the time, Lorraine, these agreements, you could easily be given something that is much less than you're actually entitled to, much less than your statutory rights to be accommodated for a disability or to be provided with pregnancy and and maternity leave and so forth.
Speaker: And just to make this even deeper, we're now starting to see non -disclosure agreements being used in consumer disputes, where a person would ask for a refund or a partial refund from a defective product, and they're being told, we won't refund you until you sign an NDA because we don't want anyone else to know that this was a defective product.
Speaker: And this has happened in relation to you know really big cases. For example, tainted baby formula, which I'm sure your listeners will be familiar with, was covered up in non -disclosure agreements for many years and continued to be sold.
Speaker: We've also seen cases involving vehicle safety. So these are really serious matters that people are being told they can't speak about, and that is both unsafe on a psychological level in the workplace, and also sometimes physically unsafe because of the defective products and services that are being covered up.
Speaker: Let's explore that a little bit further. What is the impact on those people who are being silenced who have already faced, you know, a potential injustice and that's what they want to fight, either harassment or racism. But then now there's this double impact. What what happens to people when they're silenced in that way?
Speaker: well i mean That's such a really good way to put this, Lorraine, because what people say all the time is this is like a second experience of trauma. They go through whatever the original experience was, which often will have been for a number of years. Sometimes people just try to put up with stuff in the workplace and just carry on and then get to the point where they really feel they have no choice but to make a complaint.
Speaker: But it's also something that causes people trauma in the process they then go through to negotiate what their settlement will be, because they're going to be pressured often quite coercively to sign a non -disclosure agreement. They may have already said, I don't want to sign a non -disclosure agreement, but they are continuously told that that is what they have to do if they're going to get a settlement.
Speaker: and What, of course, we're starting to see very clearly is that this is all a big bluff because if you think about it, the reason that the employer or the organization wants an NDA is to keep the matter out of the public domain. They don't want anyone to associate racism or sexual misconduct with their workplace or some kind of defect with the goods that they're they're manufacturing. And so they do this in order to keep it out of the public.
Speaker: discourse and Of course, if they go to court or tribunal, they'll immediately be in public. so We often say to people, and I just want to put this out there, Lorraine, to your listeners, that if they dig in and they have the resources emotionally and financially not to accept a settlement,
Speaker: right away, they will eventually end up with a settlement without an NDA because they're not going to go to court. These people don't want this being talked about publicly, but they operate as a very effective bluff on the public. Can you give us an example of how this silencing has played out and maybe ah someone who has broken that silence despite the and NDAs and the the threat of reprisals?
Speaker: Well, this is really interesting actually because one of the things that I have seen consistently, and I worked for a long time with self -represented litigants who couldn't afford legal counsel, and I saw a very, very similar impact.
Speaker: And that is that people become you know really very immersed in the idea that they have been restricted in their speech. Now, you know a lawyer might say, yes, well, no one's following you around with a video camera. you know You can sit at the kitchen table and have a cup of coffee with your mother and tell her what happened. But in reality, that's not how it feels for people. They've been told that if they break that and NDA and speak at all about this, they will lose their compensation. And that compensation is not always very large anyway for matters like sexual harassment, and usually something they can't afford to lose. So there is a real fear. And I think also, you know, this tells you something about the honorability of Canadians. When they sign something and promise that they won't do that, they feel they have to stick to that.
Speaker: But of course, as your question implies Lorraine, there are people now who are breaking them, who are saying, you know, I am going to and they're breaking them publicly. Because if they sit at the kitchen table and talk to their mum, no one's going to know and they have by this point become so angry about their silencing, they want it to be public. So it's kind of creating a problem that wouldn't necessarily be there, because most of these victims certainly never began thinking they wanted to be public about this.
Speaker: And so people go ahead, they breach. We don't tell them they should do so. We set out what the consequences could be that they will lose their compensation. And if they go ahead and break it anyway by putting something up on social media,
Speaker: then they wait. And what we're finding is no one's getting sued. And of course, the reason that no one's getting sued for breaching their NDA is because especially since you will remember the Hockey Canada scandal in 2023, it looks really bad for an organization to enforce an NDA now. it's this you know It would be associated with really bad PR. And so another part of this bluff is that when I speak to CEOs of large organizations about whether they would ever enforce any of their existing and NDAs, they always just laugh and say, well, no, of course not, because we would look awful if we did that. There you go. Julie, who else is calling on the BC government to act to protect the public from the harms relating to signing and NDAs? and And what are you asking the BC government to do?
Speaker: Well, there is a lot of support for this legislation in BC. i mean I should also add to that, Lorraine, that there's a lot of support amongst the individuals who are impacted by this in every province and territory in in Canada. But of course, the paradox here is these are silenced people, which is why we're speaking on their behalf.
Speaker: What we want the government of British Columbia to do and what I believe they will do, because we've been in conversation with them for some time now, is that they are going to look at all of the different practice around the world. And there is a lot now. ah it Just as an example, 22 US states have now legislated against and NDAs being used in cases of sexual misconduct, discrimination, and harassment. So this is an opportunity for BC to decide how much they want to be a leader in this regard. There are precedents for legislation that they can use and we also have, if you like, a model piece of legislation that has already passed in Prince Edward Island. Very small jurisdiction, but it passed a couple of years ago now and people just carry on. The sky did not fall.
Speaker: So I think that they are very much accepting of the fact that they need to do something just as Nicki Shama says to stop people being silenced when they're seeking justice or speaking out against unfair treatment. And we also know that and NDAs are putting people off making formal complaints at all. So if we ask people, why didn't you decide to bring forward a formal complaint about your unfair treatment? We here, and this is in one third, Lorraine, of our survey respondents, who are 1 ,300 people altogether,
Speaker: One third of them are telling us the reason they didn't make a formal complaint was because they anticipated they'd be made to sign an NDA and they didn't want to. So we're just pushing everything back under the carpet again, where it used to be before Me Too or Black Lives Matter.
Speaker: Well, for those of us who aren't silenced, who have a voice, what can we be doing to push this forward? Because i'm honestly, listening to you, I'm just kind of shocked at the way that these and NDAs have been used.
Speaker: Well, you know that's the reaction that that I have, that we have a lot of times when we set out the facts for people. I think that it's really important for people who are listening, who may well have been affected themselves by this, write to your MLA, tell them that you support this legislation, tell them that it should be a priority.
Speaker: I know people will be very anxious about not revealing that they themselves have signed an NDA because even saying you've signed one is a breach. But we have a template letter on our website which you can use and adapt. That's can'tbuymysilence .com. We also have a lot of other resources in there giving people information about how they might push back and try to renegotiate and so forth.
Speaker: But I think it's worth pointing out that in British Columbia, we have the support of the Green Party, who don't have a great number of MLAs, but I think, you know, have been very important. We've seen in the last few weeks during the BC election period, Sonia Fernis Stau has already introduced a private members bill, and she would love it if Nicki Sharma stole her bill.
Speaker: We also know that the British Columbia Canadian Bar Association, which represents lawyers, has been at the forefront of what became a national resolution in 2023 calling on members of the Canadian Bar Association to push back against and NDAs, to stop using them, and to stop asking clients to do them,
Speaker: and also to take steps to push government to lobby government to do something about this. So we have widespread support within the legal profession and certainly people who work in legal clinics and services for people who do not and cannot afford lawyers are telling us that they're seeing these all the time. So this is a critical issue in particular for people who are marginalized, people who can't afford legal representation, which is about 75 % of the population. Now, they are often in a position of ignorance and are unaware of the fact that this will be an albatross around their neck forever. And secondly, that they don't need to agree to it. They can push back. Well, it's been really good talking with you today. Thank you so much. You're welcome. Thank you.
Speaker: I've been speaking with Dr. Julie McFarlane. She is a distinguished professor emerita of law at the University of Windsor, and Julie McFarlane is co -founder of Can't Buy My Silence. For more information, you can go to their website, can'tbuymysilence .com.
Speaker: The Red Eye Collective is based in Vancouver. You can check us out at coopradio dot .org slash redeye.
