We made a submission to the Victorian Government Department of Treasury consultation on restricting the use of non-disclosure agreements (‘NDAs’) in workplace sexual harassment cases. Our submission welcomes proposed legislative reforms that would ensure NDAs are used only at the request of a complainant. Based on our significant experience across discrimination and human rights matters, we have seen the prevalence and overreliance on NDAs by respondents and also call for the broadening of reforms to include all forms of discrimination and harassment in Victoria.
Victoria’s anti-discrimination legislation, the Equal Opportunity Act 2010 (Vic) (‘Equal Opportunity Act’), prohibits discrimination in public life on the basis of 21 protected attributes; including sex, race, disability, age, gender identity and sexual orientation, among others, and imposes a positive duty to eliminate discrimination and sexual harassment.
Under the proposed reforms, a person complaining of both sexual harassment and, for example, racial or disability discrimination in an individual complaint under the Equal Opportunity Act, would only have the benefit of restricted NDA use in relation to their sexual harassment complaint. This complainant could then still be bound by oppressive NDA and non-disparagement terms in relation to their non-sexual harassment complaint.
We call for the broadening of reforms as the groups that disproportionately experience sexual harassment, also experience discrimination, and any legislative changes must recognise these intersecting experiences.
