More than twenty years ago, Harvey Weinstein reached a settlement with Zelda Perkins, who alleged that he had committed sexual harassment. She and another young assistant were forced to sit, in-person, at a board table with Weinstein as they signed their respective non-disclosure agreements. The NDAs strictly prohibited the two former employees from discussing Weinstein’s behaviour — and their careers at his company, Miramax Films — with friends, family, and each other. The confidentiality agreements were repressive, punitive and opaque: the former employees were disbarred from even possessing a permanent copy of the legal documents.
Zelda Perkins experienced significant professional and personal repercussions from the conditions of her NDA, which has subsequently galvanized her advocacy. In many ways, she has become the face of a new, post-#MeToo legislative movement: she co-founded Can’t Buy My Silence, a public advocacy campaign that aims to restrict the use of non-disclosure agreements in sexual harassment and misconduct cases. Many legal experts contend that NDAs can enable serial predatory behavior and exploit complainants — particularly in workplace settings. Employers who are seeking to protect their reputations, and insulate systemic offenders, may wield NDAs to silence victim-survivors. Harvey Weinstein re-enacted a pattern of prolific sexual violence for more than two decades. During this time, he signed at least eight separate non-disclosure agreements.
In North America, and around the world, policy-makers are tabling legislation to address this faultline in the justice system. In Canada, in November 2021, PEI became the first province to enact a bill that limits the use of NDAs in cases of sexual misconduct. Bill No. 118, the Non-disclosure Agreements Act, ensures that relevant parties who sign NDAs have not been subject to undue pressure, and that they have been provided with an opportunity to receive independent legal advice. Notably, the bill stipulates that non-disclosure agreements are only enforceable if they do not compromise the health or safety of a third party, or the public interest. The latter clause is significant (and, admittedly, contentious); it might provide a legal avenue for victims who fear a pattern of misconduct to void their agreement.
Many provinces have followed suit. In Nova Scotia, Claudia Chender, the leader of the NDP, introduced a Private Members’ Bill — Bill No. 144 — which mirrors PEI’s legislation. Meanwhile, Ontario’s Bill 26, Strengthening Post-secondary Institutions and Students Act, 2022, passed with unanimous consent from all MPPs. It aims to ensure that post-secondary students who are abused by faculty are provided with the opportunity to make an informed choice on whether they would like to enter into an NDA. Several legal observers, while applauding this rare display of multi-partisan unity, have critiqued the bill’s limited scope. Endemic sexual misconduct is not siloed to student-faculty relations within the post-secondary education sector; it transcends all workplaces, and all social contexts.
On the federal level, Senator McPhedran has signaled her intent to introduce legislation that bans NDAs in some federally regulated workplaces. In tandem, provincial-federal legislation will contribute to a norm shift that will decrease their usage. Workplaces must be forced to contend with the harm associated with their actions; their reputations should not be prioritized above the healing process of victim-survivors.
Zelda Perkins broke her NDA in 2017, in order to denounce the systematic misapplication of non-disclosure agreements in settlement agreements with survivors of sexual harassment or assault. It is time to enact federal, survivor-centric legislation that redresses the asymmetrical power imbalance underlying many of these agreements. Our legal system should not protect serial perpetrators who possess the financial means to exempt themselves from punishment — repeatedly. It’s time to speak out.
