Google Harassment Scandal: Should NDAs Be Banned?

In fact, 20%[1] of Google’s workers protested from around the globe, from Tokyo setting precedent, all the way to Berlin, it was estimated that more than 1,500 employees – mostly women – walked out from more than 60% of Google’s offices at 11:10AM[2].

Why were they protesting? Well, it may have been a shock to many of you, (those who perhaps are not hired by Google), as the company is renowned for their reputation regarding its work environment and progressive attitude. But a week prior to the protests, Google reported that they had given a former executive a whopping 90 million dollar severance package in 2014.

Andy Rubin – the creator of the Android mobile software –  decided to say goodbye to Google in October 2014; his leave was promptly followed by Larry Page, Former Chief Executive of Google, paying homage to their much loved employee, stating[3]: “I want to wish Andy all the best with what’s next…With Android he created something truly remarkable — with a billion-plus happy users.”

Obviously, what Google decided to conveniently miss out, was that an employee had accused Rubin of sexual misconduct and when their investigation into the matter concluded that her claim remained credible, Page asked for Rubin’s resignation after confidentiality agreements were signed.

The cherry on top of the cake is that Rubin is actually one of three executives Google has supposedly protected over the past decade after they were accused of sexual misconduct.

The googlewalkout page on Instagram stated that they wanted Google to make five changes to its company policy:

1. An end to forced arbitration in cases of harassment and discrimination.
2. A commitment to end pay and opportunity inequity.
3. A publicly disclosed sexual harassment transparency report.
4. A clear, uniform, globally inclusive process for reporting sexual misconduct safely and anonymously.
5. Elevate the Chief Diversity Officer to answer directly to the CEO and make recommendations directly to the board of directors. In addition, appoint an employee representative to the board.

In arbitration, the proceedings are usually private and the public does not know when the arbitration is occurring or where, and oftentimes many documents are designated as confidential, also without becoming part of public court records.

Touching on their first point, we have previously touched on the issues of using arbitration in harassment cases, especially in the US; Twila White, an employment lawyer in Southern California, explained how employers often require employees to sign an agreement prior to beginning their employment, that if a dispute arises, it will be resolved via arbitration.

This often leaves employees at a disadvantage. Speaking to us earlier this year, she states: “When something bad happens in the workplace, after an employee has signed an arbitration agreement, most of the times the employee will end up in arbitration where there is a retired judge or lawyer, who is the ultimate decision maker. The employer is paying the arbitrator. The employer has the opportunity to have a repeat player dynamic where that employer has been before a particular arbitrator many times over, and has a familiarity with an arbitrator, whereas the plaintiff has no familiarity with that arbitrator or process. Lawyers call it the “repeat player effect”.” Twila expands on this, stating that another issue for employees and the general public, is that arbitration allows cases to not be publically reported for press, leaving little knowledge of such cases to the public eye, thus making it easier to employers to brush their accusations under the carpet.

Twila states: “In arbitration, the proceedings are usually private and the public does not know when the arbitration is occurring or where, and oftentimes many documents are designated as confidential, also without becoming part of public court records.”

Ignorance isn’t always bliss, especially when harassment and discrimination are involved. For the safety and wellbeing of others, shouldn’t the public be aware of a company’s misconduct?

So, How Should Harassment Cases Be Handled?

Obviously prevention is better than cure, and employers should make it evidently clear to what accounts towards sexual harassment and their zero tolerance policy towards such behaviour; workplaces should also have a detailed policy in place if harassment occurs whereby employees should know who to report to and how the investigation, and responses of such an investigation, will occur. Twila recommends that training should be done yearly, and focus on working from the top (higher management), to lower down[4].

Nonetheless, regardless if preventative measures have been taken, evidence of discriminatory behaviour and harassment should be investigated, involving a member of the HR team if necessary, and when appropriate, offer guidance and counselling to the victim. How the case is resolved, depends on the situation itself.

Possible outcomes are: verbal or written warning; a (temporary) restraining order; the accused may be reassigned to another department, away from the victim, or suspended, or terminated from employment; and, depending on the severity of the case, cases may be reported to the police who will sanction the accused appropriately.

Due to the sensitivity of these cases, employers, and in some instances employees, usually prefer to maintain as much confidentiality as possible, and this is where non-disclosure agreements (NDAs) come in.

The purpose of a non-disclosure agreement (NDA) is to keep sensitive information confidential.

What is an NDA?

NDAs are contracts whereby parties agree to limit what they say about a dispute in the future. In sexual harassment cases, it may come across as part of a ‘deal’ to get employees to take a form of compensation – monetary, as an example -, as long as you legally agree to not mention this to the public. This may occur when an investigation hasn’t come to a secure conclusion, but employers want to be thorough and ensure nothing will come back to bite them.

Jamie Jenkins, Barrister at St John’s Buildings chambers, tells us more about NDAs in sexual harassment cases:

“The purpose of a non-disclosure agreement (NDA) is to keep sensitive information confidential. They are commonly used in business settings, during a deal process, for example, and can be used to protect the confidential or sensitive information from one or both parties during negotiations or a business transaction.

“With the dawn of the #MeToo movement, the use of NDAs to cover up historical sexual misconduct has come to light, prompting widespread scrutiny of how they are used, and to what purpose. In the case of the Harvey Weinstein allegations, the NDAs relate to particular incidents, and were put in place retrospectively. However, in the case of the Presidents Club, the staff were reportedly made to sign contracts in advance, before going on to be subjected to sexual harassment. It is very important that the receiving party, the individual signing the NDA, understands in full the parameters of the agreement being put in place.”

There is an important safeguard. [In the UK] under an employment settlement agreement (s203 Employment Rights Act 1996), it is an express condition that the employee must have received legal advice.

But here lies the problem: confidentiality may refrain other victims coming out about further harassment claims. Moreover, critics of NDAs state that they easily sweep claims under the carpet.

The process of filing a harassment claim can be tiresome, especially in some cases, whereby silence is an easy offer to accept in replacement for money or the termination – or some form of discipline – of such employee.

An example, is this report made on Magnify Money: Chelsea* learnt the difficulties of filing a claim; she never wanted to resort to hiring an attorney, but when the company’s HR team did nothing, – aside from offering her a demotion after filing a complaint that her manager was making sexual advances -, she had little choice left. She wanted to ensure her manager realised his actions were incorrect and hoped taking such action would refrain him from harassing another employee, and stated that her reason for settling was not a ‘money making scheme’, but instead, stated: “I accepted a settlement instead of going to trial is that [sic] I didn’t want to be publicly seen as a woman who files these claims.”

We spoke to Andrew McDonald, Employment Law partner at BLM, on this particular matter.

“Even where an employer fights a spurious claim and wins, it is often a pyrrhic victory, one which incurs extensive legal fees and a huge amount of senior management resourcing. Additionally, these cases tend to attract a high level of press interest, which could concentrate on allegations, rather than the rationale behind judgements which rule in the business’ favour.

“This is where NDAs can come in to play. Faced with these challenges, businesses will often try to see if a claim can be settled for a modest amount either under a settlement agreement [or an ACAS COT3, (solely in the UK)]; these will always include a confidentiality clause, which is a form of NDA. In these circumstances, the use of NDAs are not to protect sexual harassers, but for the simple expedient of avoiding the payment becoming general knowledge.”

NDAs often leave a lot of confusion and do give the accused power to avoid consequences of their actions. However, does it cause the same level of harm, when NDAs are reported to be signed in such cases and leaves us no definite answer to what truly occurred?

Are we intentionally silencing abused women and men? The rise of #metoo has shed light into how much more common sexual harassment is than we think, and it is not until we delve into the process of how things are handled, that we learn the easy misuse of NDAs. What other choices are there for victims? Well, Caroline Humphries, Tutor at The University of Law, Bloomsbury, assures us that not all is lost:

“Some commentators have suggested that due to an inequality of bargaining power such settlement agreements are not really consensual and therefore may be steamrolled through by employers. However, there is an important safeguard. [In the UK] under an employment settlement agreement (s203 Employment Rights Act 1996), it is an express condition that the employee must have received legal advice. This advice is in regards to the terms and effect of the proposed agreement and, in particular, its effect on the employee’s ability to pursue any claims in an Employment Tribunal.

“The employee must, therefore, take legal advice before agreeing to the Settlement Agreement. This means the employee must be advised on the terms of the agreement and they have the opportunity to redress the balance of power.

“Employment lawyers often advise on Settlement Agreements and they will negotiate on behalf of an employee if the terms of the Settlement Agreement are not appropriate. Given this safeguard, I consider that Settlement Agreements have a useful role in settling disputes and should be allowed.

“They bring potentially difficult proceedings to an end. They also do not put employees or their employers through the process of litigation where the results are uncertain and individuals may have to give very personal evidence.

“Allowing Confidential Settlement Agreements does not, of course, mean that they are always appropriate. Employees should have the confidence to understand that if they do not want to settle, there is always the option of employment tribunal proceedings.”

If we turn back to the Google scandal in particular, many of the protestors were aggravated that an employer who had broken policy, was still being paid millions of dollars, even though he has resigned[5]. Rubin denied all allegations, with his spokesperson stating he left due to other reasons. Rubin publicly responded: “Specifically, I never coerced a woman to have sex in a hotel room. These false allegations are part of a smear campaign by my ex-wife to disparage me during a divorce and custody battle.[6]”

NDAs often leave a lot of confusion and do give the accused power to avoid consequences of their actions. However, does it cause the same level of harm, when NDAs are reported to be signed in such cases and leaves us no definite answer to what truly occurred?

In the case of NDAs, whilst stopping serial offenders is crucial, legislators will have to tread carefully to ensure they don’t remove the assistance NDAs provide all parties, ensuring any new regime still allows sensible settlements to be reached with confidentiality maintained.

Jamie sheds more light into the controversy behind using NDAs and how all could be over, if the media finds out: “In a commercial context, NDAs are often restricted in time. On the other hand, NDAs used to cover up cases of sexual misdemeanour have no shelf-life – the receiving party is silenced indefinitely. If a high-profile NDA does come to light, it can prompt a flurry of further disclosures, rendering its entire purpose useless – the allegations having become widely publicised. In such cases, the celebrity may seek an injunction in an attempt to preserve their reputation. The problem with injunctions in this setting is that, whilst they silence the original source, they may not prevent others from spreading the word further – once started, a media furore is hard to quell.”

So, why are they legal? Well, because they are a little more complicated than we think, as Jamie explains: “There are two areas of difficulty surrounding whether NDAs should be used in sexual harassment cases. Firstly, the remit of such agreements is far more complex than is widely reported. Their use to cover up criminal activity, such as rape and assault, is a matter which the government is currently looking into. However, not all sexual harassment is criminal, and NDAs are commonly used in relation to information or conduct that is not illegal – it is therefore wrong to assume that the use of NDAs as a whole is wrong. Secondly, an NDA can play an important role, even in disputes. In such situations, including legal disputes, an NDA can allow all parties to draw a line under the matter, and move on – so they can serve a valuable purpose.”

And what if NDAs were not to exist? With many stating they should be banned in such cases, Andrew highlights what could happen if they were no longer an option:

“The complete banning of NDAs could result in matters which could otherwise have been settled having to undergo a full hearing before a Judge. Employment Tribunal systems would be clogged, and businesses and claimants would face great expenses of time and legal fees.”

He expands on sharing that the important thing to do is to ensure that businesses, across different industries and sectors, commit to stopping sexual harassment and eradicating workplace cultures that may have previously allowed abuse to thrive. He expands: “In the case of NDAs, whilst stopping serial offenders is crucial, legislators will have to tread carefully to ensure they don’t remove the assistance NDAs provide all parties, ensuring any new regime still allows sensible settlements to be reached with confidentiality maintained.”

Since the walkout, Google has announced that they have made some changes to how harassment cases are handled; they will no longer force employees to take their claim into arbitration.

“We will make arbitration optional for individual sexual harassment and sexual assault claims. Google has never required confidentiality in the arbitration process and arbitration still may be the best path for a number of reasons (e.g. personal privacy) but, we recognize that choice should be up to you,” wrote Google CEO Sundar Pichai in a company email.[7]

The controversy behind NDAs remain, and even though there is a strong movement for the use of NDAs to be reviewed, especially in regards to sexual harassment cases, it is vital that workplaces do as much as they can to avoid sexual harassment cases in the first place. Prevention is always better than cure.

 

[1] https://www.reputationinstitute.com/blog/growing-workplace-crisis-google

[2] https://www.theverge.com/2018/11/1/18051026/google-walkout-sexual-harassment-protest

[3] https://www.nytimes.com/2018/10/25/technology/google-sexual-harassment-andy-rubin.html?module=inline

[4] https://www.lawyer-monthly.com/2018/04/workplace-harassment-how-do-we-stop-it-2/

[5] https://www.vox.com/the-goods/2018/11/2/18056390/google-walkout-employee-interviews

[6] https://www.nytimes.com/2018/10/25/technology/google-sexual-harassment-andy-rubin.html

[7] https://edition.cnn.com/2018/11/08/tech/google-sexual-harassment/index.html