Prince Edward Island Legislature Supports Bill to Stop NOAs from Silencing Victims of Harassment and Discrimination

A bill that would prevent organizations from using non-disclosure agreements to prevent victims of harassment or discrimination from speaking out has passed second reading in PEI.

The provincial legislature unanimously voted in favor of the bill on Tuesday, which was introduced by Green MP Lynne Lund.

The law would make Prince Edward Island the first province in Canada to limit the use of non-disclosure agreements in cases of sexual misconduct.

The bill would allow the parties to enter into such an agreement in cases of harassment or discrimination only if it is in accordance with the wishes of the person who made the allegations.

They cannot be unduly influenced, they cannot be pressured, and they must have received legal advice.– Green MP Lynne Lund

Lund said his legislation would protect victims who agree to a nondisclosure agreement when settling cases of sexual misconduct in an attempt to emerge from a traumatic experience.

“They sign the deal and they leave believing it will get them going, but they quickly find out that the NDA is exactly what keeps them from being able to do it, because they now think they can’t. they can’t talk to the police, they can’t talk to their mental health support worker, they can’t talk to their doctor, ”she told the legislature.

“It’s incredibly difficult, especially in a small community, because this person is constantly afraid of accidentally violating the terms of their agreement and risking prosecution.”

The bill also provides mechanisms for those who enter into nondisclosure agreements to waive their confidentiality in the future, and raises the requirements under which such agreements can be enforceable.

“They cannot be unduly influenced, they cannot be coerced and they must have received legal advice.” Lund said. “They need an opportunity to make it clear in the agreement who they are always allowed to speak to.”

Susceptible to abuse

Experts from other parts of the country have already welcomed the legislation.

And advocates and survivors have written letters supporting the bill.

“Having tried to protect a coworker over 25 years ago, while working for Harvey Weinstein, and having been forced to sign a damages agreement with unethical nondisclosure clauses and frankly immoral, I am very aware of the devastating personal and professional ramifications of resigning your human right to speak out about trauma, ”wrote Zelda Perkins, who broke the deal with Weinstein and Miramax Films against her legal opinion in 2017.

“I am convinced that unless lawmakers step in to restrict the use of nondisclosure agreements, these provisions will continue to be demanded by parties settling harassment and discrimination cases, and far too often. the survivors will accept them in order to obtain a settlement that brings them some closure. ”

In a letter to Lund, Nova Scotia human rights group Equity Watch said high-profile sexual harassment cases such as the Harvey Weinstein scandal show how NDAs can be abused.

“Private settlements can be useful in avoiding costly and time-consuming commissions of inquiry,” wrote Larry Haiven, professor emeritus at Saint Mary’s University. “In addition, victims sometimes prefer a private resolution rather than having what happened to them public knowledge.

“However, if one of the primary goals of the human rights regime is public education and general deterrence, then a gag order makes the process of settlement absolutely unnecessary.”

Haiven said failure to abide by the terms of the agreement may result in the settlement being rescinded, and that there have been instances where even the mention of a settlement has been deemed to be a violation, or has led to employers to demand that it be canceled.

“This shows (…) how far some respondents will go to enforce the required silence in non-disclosure agreements,” he said.

The Canadian Women’s Foundation, Prince Edward Island Rape and Sexual Assault Center, BIPOC USHR and other organizations have also written letters supporting the legislation.

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