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A confidentiality clause is a provision within a settlement agreement under which parties agree that certain information will be kept confidential as part of the settlement. Confidentiality clauses are also commonly referred to as non-disclosure agreements (NDAs).
In a settlement agreement resolving an allegation of workplace sexual harassment, a confidentiality clause may stipulate that parties keep certain matters confidential, such as the quantum of any payment or other details relating to the allegation itself and settlement process.
Confidentiality clauses can be beneficial in providing a complainant with privacy, finality and greater bargaining power when settling their complaint. However, they have also been used to cover up unlawful conduct and to protect the reputations of alleged sexual harassers and their organisations. As such, they can facilitate repeat offending and inhibit oversight by executives and boards, who may be unaware that complaints have settled confidentially. In this way, confidentiality clauses can contribute to under-reporting and reinforce the systemic nature of sexual harassment, hiding both its prevalence and the steps taken to address it.
Lawyers play a key role in drafting, negotiating and advising on confidentiality clauses to resolve workplace sexual harassment complaints. They should keep their professional and ethical obligations front of mind when doing so.
The Australian Human Rights Commission (AHRC) has produced helpful information about the use of confidentiality clauses to resolve workplace sexual harassment complaints. We strongly encourage Victorian lawyers to refer to this information when working on these matters.
See the following expandable sections for more detailed information.
