Higher education must stop covering up misconduct

If universities will not give up NDAs, how can we expect private corporations to do any better, asks Julie Macfarlane

January 26, 2022
Sweeping facts under the carpet
Source: iStock

Last week’s announcement by UK universities minister Michelle Donelan that she wants to bear down on the use of non-disclosure agreements (NDAs) to cover up misconduct comes as a huge relief to those of us who have watched with growing alarm as NDAs have become a “go-to” for silencing complainants.

Terminating an employee for sexual harassment? Give them an NDA to go quietly, and simply “pass-the-trash” to another unknowing university (there are many examples of this). Reached a finding of misconduct but stopping short of termination? Use an NDA to prevent student and staff finding out and demanding further sanctions.

Some universities even require a pre-emptive NDA to initiate a complaints process, and they commonly negotiate deals directly with perpetrators without involving the victims at all. In many university processes, complainants are not permitted to see the final decision – or they are asked to sign an NDA before they can access it. Where the complainant is a party, they are told that they “must” sign an NDA to “protect themselves”. This is neither true nor accurate – a complainant does need a one-sided confidentiality clause, but it should not come at the price of protecting the person who harmed them.

Donelan’s call on universities to publicly pledge to no longer use NDAs is, rightly, not limited to cases of sexual harassment. I have seen embezzlement, bullying, discrimination, research fraud and many other harms covered up by NDAs, and not just in the UK: this is an established practice across Canada, the US, and probably many other countries, too. But the tide is starting to turn.

Alongside Zelda Perkins, the first woman to break her NDA with Harvey Weinstein, I have launched Can’t Buy My Silence, a global campaign to ban NDAs. Legislation we have promoted is proceeding in The Republic of Ireland and in England and Wales. It has already been enacted in Prince Edward Island and is being considered by lawmakers in three other Canadian provinces.

The public response has been extraordinary, with many brave individuals coming forward to describe the impact of signing an NDA. Their stories all refer to a constant sense of living under threat, which continues their trauma, and a feeling of frustration and even despair at being unable to speak to others (NDAs often proscribe talking to family, friends or professional therapists).

The prevalence of NDAs is being quickly established. Our UK data partner, Speak Out Revolution, is collecting survey data from respondents who have reported workplace harassment and bullying. More than a third of education-sector respondents report having had to sign an NDA, and another 14 per cent “cannot say for legal reasons”. This is code for having signed an NDA, so the total proportion of complainants who have signed an NDA is a whopping 50 per cent. Of those, 95 per cent say that it has affected their mental health.  

I have seen a lot of positive change in the 40 years I have worked as a university teacher in both the UK and Canada. But tackling the insidious invasion of NDAs into university processes feels like a critical unfinished task – and yes, it’s personal. I was caught in the tangled web created by an NDA between a terminated faculty member and my university, refusing to lie when I was called for an offline reference by other institutions that he went on to apply to. In that moment, it was crystal clear to me that I had a responsibility as an educator to protect all students from known harms (and I knew a great deal about the harms in this case). I also hold this duty towards the parents of students and prospective students. It is an unbreachable trust.

Universities are not just a bunch of separate institutions competing with one another – they are part of a wider community that shares values of openness, debate and learning. My colleagues are not just in my own school, and I believe that universities owe one another truthfulness and transparency. Intentionally hiding details of misconduct from other universities is wrong. Yet my university management not only erased the former faculty member’s long record of complaints after firing him for harassment – they gave him a letter of recommendation.

NDAs are part of a culture of silencing and suppressing information that has grown deep roots in higher education. We all know that there is a price to speaking up, and for staff that typically includes retaliation. This price is also being paid by the most vulnerable and powerless parties in universities – students, who often don’t bother to make a complaint because they know they will be asked to sign an NDA and will be alone and isolated. These are young people at the beginning of their careers, who are being told that cover-up and failing to warn others is the right moral choice. It is not.

Universities are critically shaping young lives. They are doing this with public money. For both reasons, they should be societal leaders, setting a standard for accountability and openness that businesses and other institutions, led by graduates, will hopefully emulate. If universities will not give up NDAs, how can we expect private corporations to do any better?

Donelan’s pledge is a recognition that universities can both reject a harmful practice and make a positive decision for change. Please lobby your own institution to sign up.

Julie Macfarlane is emerita distinguished university professor at the University of Windsor, and a Member of the Order of Canada. She is the co-founder, with Zelda Perkins, of Can’t Buy My Silence, campaigning to ban NDAs.

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