NDA Myth vs. Reality

NDA Myth vs. Reality*

MYTH: NDAs protect victims after a traumatizing event

REALITY: NDAs often retraumatize victims by isolating them from potential supports and preventing them from discussing what happened

MYTH: NDAs are necessary to protect victims’ confidential information

REALITY: It’s easy to draft confidentiality clauses that protect victims’ information while still allowing them to speak out if they choose

MYTH: NDAs restricting a victim’s ability to speak to ANYONE about what happened for an unlimited time are “standard”

REALITY: NDAs, like any other clause, are negotiable. You can reject one entirely, extend the parameters of who the victim can tell their story to, or limit how long the NDA applies

MYTH: Employers won’t settle disputes if NDAs aren’t an option

REALITY: When victims push back against NDAs, employers frequently agree to settle disputes without restricting a victim’s right to tell their story

MYTH: It’s important for employers to be able to protect their reputations with NDAs

REALITY: NDAs should never be used to protect an employer’s reputation if they allow employers to “pass the trash,” cover up all manner of misconduct, and put other people at risk

MYTH: NDAs are reasonable and not overly restrictive

REALITY: NDAs are often too broad and can prevent victims from speaking to friends, family, and even therapists about what happened

*Adapted, with gratitude, from Can’t Buy My Silence, the groundbreaking Canadian and UK campaign started by Law Professor Emerita and Member, Order of Canada, Julie Macfarlane; and Zelda Perkins, the first woman to break her NDA with Harvey Weinstein.