Loose lips about settlement expensive
In June 2019, Kelly reached a settlement with her former employer over a sexual discrimination allegation. She had filed a complaint with the Ontario Human Rights Tribunal and before that complaint and the employer’s response became public, it was resolved.
In the settlement, Kelly received money. We’re not told in the decision we have what the particulars of the complaint were or how much money she got.
What we do know is that the minutes of settlement included a confidentiality clause and a mutual nondisparagement provision. A confidentiality term is almost always in settlement documents for such cases, and Kelly’s said that if anyone asked about her complaint, all she would say was “all matters have been resolved.”
A mutual non-disparagement provision indicates that both parties will not say derogatory things about each other orally, in writing or in electronic communications.
As per usual, Kelly’s agreement indicated that if she breached this provision, she would have to pay back the money she got for the settlement.
Soon after Kelly’s settlement was achieved, she changed her LinkedIn profile. It had previously said that she had filed a sexual discrimination case against her former employer and an employee. Now it said “To all those inquiring, I have come to a resolution in my Human Rights Complaint against (she named the corporation) and (she named the individual) for sex discrimination.” The employer did not discover this online statement until 15 months after the settlement. They gave her a second chance. They emailed her and delivered a personal letter requesting that she remove the LinkedIn post. Kelly ignored them.
The employer applied to the Ontario
Human Rights Tribunal to order Kelly to return the money she got for the settlement as a result of her alleged breach of the confidentiality and non-disparagement provisions of the settlement. Kelly ended up having to pay the money back. The parties had clearly come to an agreement that all she was able to say was “all matters have been resolved.” Kelly not only named the company and the individual involved in the complaint but also mentioned that it was a sex discrimination case.
It also violated the non-disparagement provision. Naming the parties involved and the nature of the unproven complaint damaged the reputation of the company and the individual named. The whole point of the non-disparagement clause was to avoid that possibility.
Kelly tried to argue that she wrote this post to try to explain to any interested employer the gap in her employment history. The argument made no sense. Naming the parties and the nature of the complaint did not further her claimed objective.
Kelly even had to pay interest on the money from the date the employer sent the letter asking her to delete the post.
The Ontario Human Rights Tribunal is swamped. Being able to settle a case through mediation is paramount. If that did not happen on a regular basis there is no way all the cases could be heard. It is not surprising that the adjudicator in this case came down hard on Kelly. If the adjudicator failed to do so employers would lose a major motivation for settling before cases become public. Whether allegations are true or not, a public complaint hearing can be damaging to an employer. There is not a lot of point in settling early in the process if damage to the company reputation is inevitable even if they pay out.