Non-disclosure agreements
And the many problems arising from them
It’s said that the Three Japanese Wise Monkeys are Mizaru (見ざる), who sees no evil (covering his eyes), Kikazaru (聞かざる), who hears no evil (covering his ears), and Iwazaru (言わざる), who speaks no evil (covering his mouth).
Of course, one doesn’t want to speak ill of people when they have done no wrong. But are there times when it is necessary to look at wrongdoing, to listen to wrongdoing, and to speak about it?
Via Damian Carrick’s excellent Law Report on ABC Radio National, I became aware of the group Can’t Buy My Silence, which campaigns against the inappropriate use of Non-Disclosure Agreements (‘NDAs’). Effectively, an NDA is a contractual obligation where the parties agree to keep certain information confidential on an ongoing basis. One of the founders of Can’t Buy My Silence, Emeritus Professor Julie McFarlane, formerly from the law school at the University of Windsor, spoke of her experience with an NDA with Damian Carrick. She has become concerned that NDAs have become routine in around 95% of all settlement agreements.
Dr McFarlane’s tale began when she learned that a colleague had been sexually harassing students for around a decade, and had been asked to move on from her law faculty. She spoke up about her own experiences, in the hope that it would get more students to come forward, and allegations began to flood in. That’s when the trouble started, because it turned out that, while the man’s employment had been terminated because the university had found the allegations credible, the university had signed a non-disclosure agreement when it entered into a settlement with the man.
Meanwhile, the man had approached other universities, seeking to be hired by them. The other universities were entirely unaware of his history, but when these universities heard of what Dr McFarlane had said, they called her up to verify whether the man did have a history of sexual harassment. When Dr McFarlane said that he did, that’s when she was sued for defamation. The university refused to release the settlement deed, which would have proven that that Dr McFarlane’s account was true, a defence to defamation. Eventually someone leaked the settlement contract to Dr McFarlane and she was able to defend herself.
How I wish… I really, really wish… that I could say that any part of this tale was surprising to me. Unfortunately, I do not find it at all surprising to hear that some academics hop from university to university, leaving a bin-fire behind them each time, because their previous employer has signed an NDA and given the employee a letter of recommendation.
See no evil, hear no evil, speak no evil of the person who has perpetrated these actions.
Why, you might ask, would a university want to do this? The answer is easy: the problem is then passed on to someone else. Just don’t be the person left holding the hot potato!
I found a neat illustration of how academic bureaucracies operate to protect themselves, in the latest Chinese martial arts drama I watched, called Tiger and Crane. In the show, Tiangang Hall’s function is to train demon hunters, and it proudly proclaims how righteous it is. It is governed by copious rules, and a Byzantine bureaucracy, all in the further pursuit of the righteous slaying of demons. Without spoiling too much, some of the protagonists begin to suspect that one of the senior figures is, in fact, a demon in disguise. The protagonists have five days to find out the truth.
The first response of the leaders of the institution, upon hearing of the allegations, is to close down, deny that there is a problem, and to push the problem back onto the people who report it. It is they who must be delusional, or difficult, or malicious. The person under suspicion has a long history with the leaders of the institution, and friendships with many of the people there, while one of the accusers is new and a foreigner.
Finally, the protagonists are given permission to investigate, but they have a whole lot of bureaucratic hurdles to surmount. Half of the bureaucratic processes are undertaken by “jobsworths”. Boxes must be ticked, even if this results in ridiculous, bad, or unfair outcomes. Of course, in the end, the protagonists are forced to break various rules, but it turns out that they were right: the institution has a huge issue, and has harboured a demon, who has been doing the very thing they have always purported to be resisting.
The Council of Elders of Tiangang Hall immediately goes into damage control. Their first priority is to ensure that other people don’t hear about this, lest people lose faith in the institution, and they face personal criticism. The problem is not publicly acknowledged, but behind the scenes, minions are frantically sent out to mop up the mess. The irony is, while the impulse of leaders of institutions is to deny problems or downplay them is intended to maintain the reputation of the institution, in the end, the institution is eaten out from within by the failure to face the issue.
It’s very evident from this storyline that Chinese society has long been governed by bureaucracies, and, indeed, historically, they had a scholarly bureaucracy. Of course, because it’s a martial arts drama, the demons can be exorcised.
In the real world, it seems that the demons are just passed on to someone else, under cover of an NDA, or the demons may even decide to victimise the individual who has made the complaint. The bin-fires continue.
As it happens, on the Law Report, Carrick also discussed a recent Australian case, Taylor v August and Pemberton Pty Ltd,1 where Ms Taylor was repeatedly sexually harassed by the principal and sole director of a business, and, when she complained about the conduct, she was victimised. The general damages awarded were the highest ever (A$140,000). Additionally, A$40,000 was awarded for victimisation, and $15,000 was awarded in aggravated damages (for the distress and assault to dignity of the plaintiff).
I note that Can’t Buy My Silence is suggesting jurisdictions should enact draft legislation which will govern the effectiveness of NDAs, including not allowing most NDAs to be effective where the allegations involve sexual misconduct, discrimination, and bullying. In my home state, the Victorian government has agreed in principle to an amendment which will mean that the Irish Employment Equality Reform will become part of Victorian law, and NDAs will not be allowed in sexual misconduct or sexual harassment claims except in certain circumstances.
I encourage the enactment of such legislation. Of course, we should not be able to make baseless accusations against our colleagues. Such allegations must be carefully investigated, with a cool head, by independent third parties. However, if an institution has decided after careful investigation that there is credible evidence that an employee has engaged in serious misconduct, or even criminal conduct, we shouldn’t just allow the employee to jump somewhere else, and we shouldn’t be unable to speak of the conduct which led to their departure from an institution.
It does seem, from what Dr McFarlane said, that this is particularly a problem in universities. We owe a duty not just to our own students and staff members, but to the students and staff members of other institutions, if a person is likely to pose a risk.
It's not as though it's a mystery - it is easily explained by following the incentives.
In a free market, an organization thrives by producing goods and services that individuals want, and must compete for that business. Their incentives then, typically lead them to provide value - as long as they have no way to block competition.
Bureaucracies, by contrast, don't tend to charge directly for what they provide. They are funded by other means, such as taxes or donations, and must simply satisfy their funders that what they do is important, while often concealing details, to prevent real accountability.
Pournelle's Iron Law of Bureaucracy states that in any bureaucratic organization there will be two kinds of people:
First, there will be those who are devoted to the goals of the organization. Examples are dedicated classroom teachers in an educational bureaucracy, many of the engineers and launch technicians and scientists at NASA, even some agricultural scientists and advisors in the former Soviet Union collective farming administration.
Secondly, there will be those dedicated to the organization itself. Examples are many of the administrators in the education system, many professors of education, many teachers union officials, much of the NASA headquarters staff, etc.
The Iron Law states that in every case the second group will gain and keep control of the organization. It will write the rules, and control promotions within the organization.
Again, you can see how that makes sense, given the incentives. The people most adept at extracting budgets are critical to the organization, and when delivering quality isn't required to get that money, it gets deemphasized.
And this is pretty much what happened with various priests in the US Catholic Church. They were found to have abused children, sent to some kind of ineffective training, and then reassigned to other parishes, who had not been warned of their history.
It seems to be a basic problem with bureaucracies.