Australia’s sex discrimination commissioner, Kate Jenkins, has warned confidentiality agreements to settle sexual harassment claims can allow perpetrators to continue or even escalate abuses of power, while preventing victims from accessing proper support.
Jenkins told a webinar organised by the Australian Institute of Company Directors on Wednesday confidentiality agreements in harassment cases should not be banned altogether, but they should not be standard practice either.
The sex discrimination commissioner said she had deployed confidentiality clauses routinely in her professional life as a corporate lawyer, but the Harvey Weinstein case had delivered a “lightbulb moment” for her.
“The Weinstein thing really exposed that – if you’ve got a really good system of nondisclosure agreements, then someone can proceed, that was at the extreme, but it’s true, to be raping people,” Jenkins told Wednesday’s event.
She said confidentiality clauses also isolated victims.
Jenkins said she had spoken to victims who felt they could not discuss their trauma with anyone, including people “who had been harassed in the past, they had subsequently got married and had never told their husband – it is that crazy”.
“There was this silence, even if you needed help you weren’t talking to anyone [out of] fear. That is ridiculous.”
She said people drafting settlements were treating the resolution of a dispute as “a commercial transaction … treating it as if, well, I’ll give you money and you’ll give me silence”.
Jenkins called for a change of mindset. She said perpetrators permitted to remain anonymous could develop a sense of impunity, and this created risks for colleagues in the future. “Some of these settlements, like Weinstein, [are] serial offenders continu[ing] on, with glowing references, and [confidential settlements] allowed them to continue”.
Jenkins said confidential settlements were highly problematic in a corporate setting because boards were often out of the loop about inappropriate behaviour in their organisation.
She said sexual harassment was incredibly prevalent in Australia. Jenkins said boards needed to be much more proactive to ensure they were providing proper governance and oversight.
Jenkins said boards were in a position to assess the potential risks by understanding the characteristics of their industry. She said work she had undertaken for the Australian Human Rights Commission, including a landmark review of parliamentary culture in 2021, had established common characteristics that elevated the risks of workplace incidents.
She said waiting for complaints to surface was completely inadequate. Boards should ask for information about nondisclosure agreements in the corporation, and it could be prudent to ask for a risk assessment to identify any high-risk environments.
“Boards have a view that we can’t regulate culture, that this is a management issue, that HR should be dealing with this,” Jenkins said.
“The time has come for this hands-off approach by boards to end. Boards are central to the change required”.
Jenkins said some firms were allowing employees to make anonymous complaints through cultural surveys, and that information was valuable to understand the culture in an organisation.
