Stop buying silence: why can’t adland just ban NDAs that mask misconduct?

Silence it, cover it up, pay it out, repeat: the extent of sexual misconduct in the workplace is obscured by legally binding documents called non-disclosure agreements (NDAs).

Women are four times as likely to experience sexual harassment as men. Yet, while it's widely assumed to be a "women’s issue", it's important to note that people who identify as LGBT+ are more than twice as likely to experience sexual harassment, according to TimeTo research. And, because it is linked to other forms of oppression, those from minoritised ethnic communities experience the worst of it.

Last year Zoe Scaman’s blog post "Mad Men. Furious Women" made people sit up and take notice of the interconnecting issues of sexual harassment (and the use of NDAs) and misogynistic bullying in agency environments. In response, a group of industry figures came together to develop a “fairer” framework for NDAs. 

What is an NDA? 

Originally used to protect commercially sensitive information, NDAs are now rife in corporate life. Visitors have to sign them to simply enter the offices of tech giants, for example. When it comes to matters of sexual impropriety, NDAs can hide wrongdoing and sometimes criminal acts by tying the silence of a victim or whistleblower to a financial settlement. 

“The best way to describe NDAs is a secrecy clause or a secrecy obligation,” Shilpen Savani, an employment lawyer and partner at Gunnercooke, who worked on the "fair NDAs" initiative, says. “While a standalone NDA requires the parties to agree that one or both of them will not disclose anything that happens between them, in the context of a settlement agreement, it’s normally at the end of a working relationship. One common feature is an imbalance of power.” 

In her piece Scaman, founder of strategy studio Bodacious, described the agency leaders dispensing NDAs as a new breed of “super gaslighter”. “[NDAs have] become the most pernicious and pervasive method with which to keep us quiet,” Scaman wrote at the time. 

“When I wrote ‘Mad Men. Furious Women’, so many women reached out to me with stories, which was just horrific,” Scaman says. “The vast majority said: 'I’m so annoyed that I signed the NDA because I can’t share this story publicly and the person is still working at a holding company, he got promoted last week, or he’s still doing it to other women. And there’s nothing I can do because I signed an NDA.'”

She continues: “[An] NDA stops you from action, it paralyses you. Which means you watch these perpetrators rise through the ranks.” 

Ali Hanan, chief executive of Creative Equals, says that the harassers "are very rarely sacked. It's why women are so reluctant to report: women are silenced with an NDA, often never to work in the industry again, while men are protected and often promoted just because of their 'value to the business'. They'll often re-offend, so being able to speak out, even to friends, therapists or other colleagues, is about being able to keep other women safe.” 

Having signed an NDA herself, when she was bullied out of a job at a big agency, Sue Higgs, now executive creative director at Dentsu Creative, recalls the traumatic experience.

“I didn’t have a breakdown. I could have. I chose not to because I had three young children at the time. I didn’t have a choice but to carry on and to fight, but it took me a long time,” Higgs says. “When you’re at the point of an NDA, you’re so weak and broken, you just want it to stop. It’s almost like when you’re in a robust mental state, an NDA doesn't make sense because you’ve got the fight in you.” 

What’s actually being done?

A year on from "Mad Men. Furious Women", has adland done anything to resolve the issue? 

“With any kind of activism work, we get really hyped up by change. And it lasts five minutes because it’s exhausting to feel that level of emotion and outrage. So we let it peter out," Scaman says. “We just haven’t had the motivation to push anything forward. NDAs are a very private, isolated thing."

To gauge their thoughts, Campaign contacted various top ad agencies, but, sadly, none was available for comment. 

Meanwhile, in a bid to elicit progress from their enthusiasm, a group of industry inclusion advocates – including Creative Equals, TimeTo and the World Federation of Advertisers, alongside Scaman – introduced "Make NDAs fair" back in May.

The campaign aims to raise awareness of the systematic misuse of NDAs in relation to sexual harassment cases and recommends adding clauses into company NDA policies, including that any financial compensation is decoupled from confidentiality clauses. Organisations committing to fair NDAs are asked to communicate the clauses to all existing and future employees and highlight basic training resources. 

“The fair NDAs policy was created to protect employees and create more awareness of what an NDA should and shouldn't be used for and why it is being deployed,” Pippa Glucklich, chief executive of Electric Glue and executive committee member of Wacl, says. “It sets out to avoid people fearing blindly being issued documentation they don’t fully comprehend and support people when NDAs are not being used in the correct way.”

However, not everyone is in total agreement with the approach. Creative Communications Workers, a union that covers employees in advertising, digital, PR, design, media, production and associated creatives industries, says that while it applauds efforts to produce a common code of conduct, it also has a reservation. 

Highlighting the recommended clause that states “protection of reputation should apply to the employer only”, a union spokesperson says: “It is our view that incidences of abuse rarely happen in a vacuum. The ability for any individual to carry out an act of abuse will be intimately tied to a broader corporate culture that allows it to happen through lack of accountability and the sorts of power imbalances that exist between senior management and your average worker.” 

While there has yet to be a concerted effort to chase agencies to sign up, out of the long list of agencies, brands and leaders from across the industry that could adopt fair NDA policies, Hanan says that, so far, only Quiet Storm, Creature, Media Bounty and The Barber Shop have done so. 

Similarly to the "Make NDAs fair" campaign, "Can't buy my silence"  is fighting to end the misuse of NDAs, with a focus on universities. It features a University Pledge List, which details those universities that have signed up to a pledge to stop using NDAs for complaints about sexual harassment, bullying and other forms of misconduct. 

“Make NDAs fair” is yet to follow suit and officially signal those that have signed up, although it might encourage others to follow suit.

“One thing I like about ‘Can’t Buy My Silence’ is they’ve asked people to sign up. There’s a pledge,” Savani says. “‘Make NDAs fair’ is a pro bono initiative, without financial backing. But I would like to see it happen.” 

While adopting fair NDAs is better than nothing, could adland just remove their use altogether, in the context of misconduct?

“It does get complicated because, don’t forget, many of the allegations are never proved,” Savani says. “It wouldn’t be right to imply that every time an allegation is made, that person is right or making them in good faith. There’s got to be space to allow for a degree of protection for employees as well. That’s why we did a lot of thinking around as a group – we’re not saying that you should end the use of them. If you look at 'Can’t Buy My Silence', it’s not saying that either.” 

Education is key

When asked what she would change about the way she reacted to her situation if she could turn back the clock, Higgs stresses that she wishes she had known more about the subject and her rights at the time.

This, she says, would have meant that she “would have called it out quicker. I would have got myself legal help, without a shadow of a doubt. I would have taken advice and extracted myself from that behaviour. When it happened to me, it went on for about a year and a half. That slowly wears you down. Whereas, if I recognised it, I could have shut it down.” 

Scaman also points out that many of the women who sign NDAs don’t know what they’re signing.

“The big part that we need to focus on, is education. Because this is happening in isolation and a lot of women are doing it alone. It’s quite fast and quite pressured,” she says. “They believe it's the only choice they have – that they have to sign the NDA or lose their career. They’re not being told they should go and check legal help before signing it.”

While the fair NDAs campaign creates awareness, better education is needed across the board. However, Scaman points to the Nabs platform as a good place to start. 

“Accountability looks different for different people,” Lorraine Jennings, director of wellbeing services and culture change at Nabs, explains. “TimeTo wants to ensure that by working on what constitutes sexual harassment and raising awareness, it can contribute toward workplaces building a culture of trust, openness and psychological safety, whereby, everyone knows and understands what and how sexual harassment shows up and that everyone knows and is clear on what can and will be done about it. A zero-tolerance approach.” 

While the world can feel helpless at times, with mass education and mass sign-ups to fair NDAs, adland can slowly but surely clean itself up. For those agencies that do not have policies in place to ensure NDAs for allegations of inappropriate behaviour are fair, what’s stopping you?