NAWL Support for MLA Lynne Lund’s proposed Non-Disclosure Agreements Act

PEI Legislative Assembly
165 Richmond St.
Charlottetown, PEI C1A 1J1

Dear Members of the P.E.I. Legislative Assembly:

Re: Letter of Support for Proposed Non-Disclosure Agreements Act

The National Association of Women and the Law is proud to support MLA Lynne Lund’s proposed Non-Disclosure Agreements Act. We thank you for your consideration of this very important issue, and recommend the bill’s passage.

This proposed bill is critical to addressing the role that “secret settlements” play in perpetuating hostile work environments by silencing workers and allowing complaints to be swept under the rug.

The National Association of Women and the Law (NAWL) is an incorporated not-for-profit feminist organization that promotes the equality rights of women in Canada through legal education, research, and law reform advocacy.
Confidentiality terms in settlement agreements (together often referred to as Non-Disclosure Agreements) are contractual provisions that isolate survivors, leave them permanently in the grip of and legally accountable to their abusers and their abusers’ employers, and unfairly silence them. On a societal level, these terms conceal wrongs that need to be exposed, acknowledged, and addressed on a systemic level. The enactment of the proposed legislation will go a long way to remedying these problems. They will set an important precedent for other Canadian jurisdictions to follow, and we will be encouraging them to do so.

Over the past two decades there has been some, albeit minimal, movement towards a relaxation of non-disclosure agreements with respect to discrimination and harassment. Much of this movement can be attributed to strong advocacy including the #MeToo movement. However, this relaxation of confidentiality requirements has, to date, been voluntary. Some survivors have spoken out in spite of non-disclosure agreements for the public good and have been spared liability only due to media scrutiny and public demands for accountability. They should no longer have to bear that risk.

Unless lawmakers step in to restrict the use of non-disclosure agreements, parties will continue to demand them in harassment and discrimination cases, and all too often survivors will accept them in order to secure a settlement that brings an end to their ordeal.

The proposed bill will also address silencing mechanisms used to bar or intimidate workers from speaking out about harassment or discrimination. Whether a worker is taking a job or leaving a job, they should never have to give up their right to speak out about harassment or discrimination. Especially now, when critical public discourse about sexism, racism and harassment is happening across this country, workers must be able to speak about their own experiences if we are going to effect real change.

This initiative is the first of its kind in Canada, and, if enacted, would put P.E.I at the forefront of addressing the issue of overreaching confidentiality clauses. Other countries are further ahead in enacting or proposing legislation to restrict confidentiality and non-disclosure/disparagement clauses in settlement agreements. These other jurisdictions include: Ireland, the United Kingdom, and in the United States (California, New York State, New Jersey State, Oregon, Vermont, Arizona, Maryland, Tennessee, and Washington State).

For all the foregoing reasons, we strongly support the proposed Non-Disclosure Agreements Act. We hope that the PEI Legislative Assembly will pass the bill with all due dispatch.

Respectfully submitted,

Tiffany Butler
Executive Director