In 2022 we saw many organisations forced to address workplace cultures of sexual harassment that had been allowed to fester further under the protection of confidentiality clauses in settlement agreements, silencing victims and protecting organisations and often perpetrators.
Settling a workplace sexual harassment complaint, or any other discrimination or harassment complaint, should be about assisting individual parties to move on from the issue, however, they should also aim to rectify systemic problems within an organisation so that the behaviour does not occur again.
An effective settlement of a workplace harassment agreement should allow an organisation to be open about addressing workplace culture problems, and provide appropriate references for employees, while protecting employees subjected to harassment.
Confidentiality clauses should be clear, fair, in plain English, and considered on a case-by-case basis, with limited scope and duration.
Following the national inquiry into workplace sexual harassment which resulted in the Respect@work report and subsequent website, the Australian Human Rights Commission heard how confidentiality obligations could hinder change in an unsafe working environment.
Sex Discrimination Commissioner Kate Jenkins said by silencing victims, concealing the behaviour of alleged harassers, and inhibiting oversight by leaders and boards through preventing fulsome and transparent upward reporting, confidentiality obligations could be harmful and counter-productive to the elimination of sexual harassment.
However, Commissioner Jenkins also said when navigated appropriately, confidentiality provisions can enhance victim-centricity of the response by providing anonymity and privacy where that is the victim’s choice.
The Respect@work website has a resource hub which includes the Guidelines on the Use of Confidentiality Clauses in the Resolution of Workplace Sexual Harassment Complaints.
At the Equal Opportunity Commission, the Commissioner and staff are required by the Act to protect the confidentiality of all complaints. The Commissioner cannot reveal information about the complaint to the media or any person, other than parties to the complaint or those required to provide evidence about the complaint.
This is because complaints are more likely to be resolved if the complaint is kept confidential.
However, the Commission considers these Guidelines best practise when it comes to negotiating confidentiality clauses and recommend all parties read the Guidelines before entering an agreed outcome to a sexual harassment complaint.
With so many organisations found to have cultures of sexual harassment in 2022, I feel it is time to take a more flexible approach to confidentiality clauses, for organisations to face their problems, and start putting employees’ safety first.
Afterall, it is in the employer’s best interests to have employees who are productive at work because they feel safe and respected.
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