NDA Bills Signal Shift Toward Transparency on Issue of Sexual Harassment in the Workplace

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Late August, California lawmakers sent a pair of bills to the governor’s office with the intent of increasing corporate transparency on the issue of sexual harassment. The first bill is designed to prohibit nondisclosure agreements (NDAs) related to sexual harassment as a condition for employment. The second would prohibit settlements requiring secrecy in cases involving sexual harassment or discrimination.

Individually, each of these moves is significant; viewed together, however, they indicate an even more substantial shift. 

These bills come on the heels of a cacophony of related legislative activity across the country restricting the use of NDAs in sexual harassment cases brought by private employees. Individually, each of these moves is significant; viewed together, however, they indicate an even more substantial shift. 

To understand this shift, we have to ask ourselves why it is happening – not the harassment, but the legislative and corporate response to it. The answer is, we have effectively redefined what "protecting the company" means. Confidentiality, which has traditionally been in a company’s best interest, kept employer decisions and disciplinary action (or inaction) from any public scrutiny or review. Blanket confidentiality requirements and lack of transparency allowed inaction to flourish.  The #MeToo movement has helped expose the effects that lack of transparency can have on the safety and security of the workforce.

The Negative Side Effects of Confidentiality

Let’s talk for a moment about the nature of nondisclosure. NDAs protect the confidentiality of designated materials, information or knowledge. This opportunity for privacy makes a number of our personal and professional processes possible. Consider our relationship with a business partner with whom we want to work: in order to do so effectively, we must share with them confidential information. We protect ourselves with an NDA to help establish the rules and provide a layer of protection and redress should a violation occur. Privacy itself isn’t bad.

In the ideal world, nondisclosure agreements are put in place so offending parties can address issues, make amends, and use incidents to inform future preventive measures, all without the threat of publicity to exacerbate the issue. Privacy is also afforded to the individual, which may be valuable to the affected party.

We do not, however, live in an ideal world.

In our real world, the inability for victims to talk about their experiences can turn a major concern – like a rampant sexual offender – into a number of smaller, disconnected incidents. With NDAs, employees can be legally restricted from saying, “That happened to me too!” Eliminating that phrase from the workplace gives the company all the power and employees must trust that employers will connect the dots, see the patterns, and address the bad behavior even when there is no further direct threat or pressure to do so. Experiences are not able to be validated by others, and validation and communication helps give people the power to speak up and seek change.

The #MeToo movement has weaponized transparency to make significant change for better treatment across industries. 

Furthermore, silence provides a buffer for companies on conduct issues. Whether by intent or neglect, silence allows room for inaction. Transparency on the other hand provides a powerful change agent which is employee accountability. The #MeToo movement has weaponized transparency to make significant change for better treatment across industries. This is the same demand for transparency propelling the legislation now surrounding sexual harassment in the workplace.

You Can’t Delegate Transparency

The You Can’t Delegate Ethics campaign has consistently aimed to elevate the issue of sexual harassment in the workplace to the C-suite and board. We also need to add transparency to that list. Transparency builds trust, helps ensure appropriate action is taken, and ultimately helps build an ethical work culture. In today’s environment, employers may no longer have a choice about whether to be transparent or not; the internet and social media has changed the power dynamic between employer and employee.

Transparency is critical in building trust with employees and creating a culture that can hold itself accountable for living up to the values of the organization

Transparency is critical in building trust with employees and creating a culture that can hold itself accountable for living up to the values of the organization. Transparency at some level about the efforts the company is taking to combat harassment (without over disclosing details that can lead to privacy and defamation claims) is important. Consider sharing details about training efforts, policy changes, and data about the organization’s progress resolving harassment complaints (and corrective actions taken) and preventing retaliation. Start a committee of employees who can help advise and provide guidance on harassment at work, and what to do about it. Issue a culture survey about sexual harassment and retaliation – let employees submit anonymous responses or identify themselves; be transparent about the results and how you intend to fix things.

But organizations should not stop there. Transparency is a vital cog in a healthy, resilient culture and it can have a positive impact across all aspects of your business. This shift toward transparency is necessary, but for many this is uncharted territory. Along the way, you will learn what your employees need to build a culture of trust.

If you feel comfortable sharing, use the comments section below to share ideas on how you think organizations can increase trust by increasing corporate transparency.

Learn more about the You Can't Delegate Ethics initiative


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