Breaking the silence
Are confidentiality agreements in sexual harassment cases letting perpetrators off the hook? Some experts are calling for them to be scrapped as the #MeToo movement gathers pace. Donna Chisholm reports.
Are confidentiality agreements in sexual harassment cases letting perpetrators off the hook? Some experts are calling for them to be scrapped.
If the disclosures made under the banner of the #MeToo campaign are showing us daily what sexual harassment is, it’s instructive to read some recent Employment Relations Authority (ERA) decisions that outline what the law says it is not. One is the 2016 ruling on the claim of retail store manager Kelli Balani, then 34, who alleged her 65-year-old boss, Craig Ireland, sexually harassed her during her year-long employment at The Clearance Shed in Pukekohe and that this left her no option but to resign.
Balani told the ERA that Ireland had asked her out when his wife was out of town “just so we can get to know each other better”. He regularly hugged her. He phoned and texted her on days off. In one text, he admitted it “must seem like I’m a stalker”; in another that he thought they had “good chemistry”. When she offered a handshake instead of a hug, he told her that wasn’t the way things were done there and that he would “break” her.
The authority found that Balani was unjustifiably disadvantaged by Ireland’s treatment of her, and her resignation was a constructive dismissal. It ordered Ireland to pay her $6000 for the breaches, $7000 in reimbursement of lost wages, $6000 compensation for humiliation and loss of dignity and $1000 for health costs. But it ruled that it was not sexual harassment under the terms of the Employment Relations Act (see sidebar page 20).
“I was not persuaded any of Mr Ireland’s interactions were, either in themselves or in combination, established to be sexual in nature,” wrote the presiding ERA member, barrister Robin Arthur.
A former Human Rights Commission (HRC) investigator, Mary Irwin, questioned the decision. “Behaviour of this nature might be okay in your personal life, but this is a workplace; different standards apply. Would the perpetrator behave in a similar way with a male colleague? Hug him repeatedly? Ask him out? Talk about his wife being away?”
THE CONFIDENTIALITY GAG
The Listener wanted to ask Kelli Balani about her case, her reaction to it and advice for other women in her position, but she is bound by a confidentiality agreement. Indeed, lawyers and investigators we interviewed for this story said confidentiality provisions surround almost every complaint of sexual harassment. Ostensibly, this is to protect the privacy of the victim, but recent high-profile cases have made it increasingly clear that such agreements are also allowing the perpetrators to emerge with their reputations intact and silencing those who might wish to warn others of their behaviour.
When broadcaster Alison Mau, supported by Stuff, launched the #metoonz project in February, critics were quick to suggest women should follow existing avenues to complain about sexual harassment, by lodging a complaint with the Ministry of Business, Innovation and Employment (MBIE) or the Human Rights Commission (HRC). Both use mediation as a first option, and if a settlement can’t be reached, legal action at the ERA or the Human Rights Review Tribunal can follow.
But Balani’s father, the former Christchurch broadcaster George Balani, says that after attending both mediation and the ERA
Confidentiality agreements keep perpetrators’ reputations intact and silence those who might warn others.
hearing with his daughter, he can understand why women wouldn’t wish to do it.
“After a complaint is filed, the first course of action is compulsory mediation where the complainant is forced to confront the alleged perpetrator across a table. To have to face your aggressor is not something most people feel comfortable about and it simply should not happen.
“My experience of mediators is that they will do whatever they can to achieve a settlement so the matter doesn’t end up in front of the authority. This isn’t a healthy position from which to mediate. The authority is not the easy, quick or practical body it was intended to be. What should be a simple, inexpensive and straightforward process has become quite the opposite.”
FIGURES AT ODDS
Last year, MBIE identified just 18 mediations that included sexual harassment, and the HRC handled 75 complaints. But Green MP Jan Logie, the parliamentary under-secretary to the Minister of Justice for domestic and sexual violence issues, says those figures are “wildly at odds with the stories we hear around the kitchen table”.
Most cases are dealt with informally by employers, and the most common outcome is a confidential settlement. But Irwin and bullying and harassment prevention adviser Jan Eggleton say it’s time to lift the secrecy around the settlements.
“If one of the outcomes of sexual harassment was that all cases were published, that would have an effect,” says Irwin.
“That’s one thing we haven’t done – harassers maintain their privacy. I just think that if somewhere, proven sexual harassers had their name published and available to the public, it would be a huge impact on their lives: they couldn’t get away with their family not knowing or their workmates not knowing because that’s how it is at the moment.
“Even if the employer suffers because of that, because the company name is out there, they allowed it to happen and it puts more emphasis on them making sure it doesn’t happen in their workplace.”
Eggleton says there would have to be a time at which people could have their names removed from any public record because there needs to be an opportunity for offenders to “start again”.
Logie says she recently heard about a women who had initiated personal grievance proceedings for sexual harassment and left her job with a settlement and a confidentiality agreement. “Then she saw the man she’d complained against had employed a 22-year-old woman into the position. She wanted to warn her but felt stymied by the confidentiality agreement.
“Codes of conduct are just sheets of paper; it’s how they are put into practice that counts. They’ve got to have teeth.”
“I think that story indicates there is a problem in the system. I think we need to look at setting up monitoring systems so a third party facilitates those settlements and there is external accountability.”
Logie says she can see situations where the victim would want that confidentiality because they fear their reputation may be professionally compromised by having taken a grievance.
“But we know we have work to do on employers, sending very clear messages to the workplace that the person laying the complaint is not responsible for the harm. We see how confidentiality plays in favour of workplaces protecting their professional image and continuing appalling cultures of abuse.”
HIDDEN CASES
Hawke’s Bay lawyer Jol Bates is representing naval officer Hayley Young, who was allegedly sexually harassed and raped during more than four years as a marine engineer. He says there’s no doubt confidentiality agreements are keeping cases hidden. Complainants enter such agreements “because they don’t want to jeopardise their future careers”.
But why should being a victim of harassment jeopardise a career? “It shouldn’t. But an employer will be looking at this and say, ‘Well, this person has raised a grievance; do we want to touch them with a bargepole?’ And that is a sad reality.”
Bates says it’s “absolutely” a problem of employer attitude. “But you also need to bear in mind that the aggrieved parties are often the ones who will insist on the confidentiality terms.”
High-profile law firm Russell McVeagh has said no confidentiality agreements were signed by the five clerks on a 2015/16 summer internship programme in Wellington who made complaints of sexual assault against two lawyers. But another law firm that hired one of the pair said it was not explicitly told the extent of the allegations. Had it known, it would not have employed the man, the firm said.
In February, reporter Michelle Dean wrote in the New York-based Columbia Journalism Review that the non-disclosure agreement had emerged as “a clear villain” in sexual harassment cases, “a character in almost every truly awful story that emerged from the #MeToo movement”.
“The reason many of these men felt protected from the consequences of their own bad behaviour is largely the same reason many corporations are confident their embarrassing revelations will never
”I don’t think these settlements allow harassers to carry on in that way. You don’t tend to see serial harassers.”