University of Canterbury Dean of Law Ursula Cheer explains what sexual harassment is in the eyes of the law.

What is keeping workers from speaking publicly and openly about their experiences of sexual harassment in our workplaces?

Fear for their livelihoods, fear of retaliation – those are common themes, and from what I'm hearing about failure of proper process, often justified.

But there's something else. In the process of investigating sexual harassment in New Zealand workplaces, I've repeatedly come across cases where the survivor feels bound by a non-disclosure agreement they did not want to sign.

Internationally there is a developing consensus that these agreements – effectively they are gag orders – are harmful to the public good in keeping the names of perpetrators, and details of their abuse, secret.

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In the UK last month, the Equality and Human Rights Commission called for non-disclosure agreements about sexual harassment in the workplace to be banned.

It called for legislation to make contracts barring employees from talking about harassment or discrimination void.

As far back as October 2017 in the US, women began breaking their agreements and speaking publicly about disgraced mogul Harvey Weinstein's abuse, to encourage debate on how "egregious these agreements are and the amount of duress that victims are put under."

It sparked similar calls for them to be banned by law.

Here in New Zealand there are a number of major organisations currently being protected by such agreements. The survivors and witnesses want to speak the truth but, bound by contract, they feel they can't.

So, we decided to ask an expert. Here, Canterbury University Dean of Law Ursula Cheer offers a possible definition of sexual harassment, and what is (and perhaps more importantly what is not) a binding non-disclosure agreement.

Please note: this interview does not amount to legal advice and cannot be relied on as such. If you have signed such a confidentiality agreement but still want to release information, you can seek independent legal advice about the specifics of your confidentiality agreement.

Sexual harassment - what is it?

There are many, of course, in different statutes and policies within the workplace. Unsurprisingly, not everyone agrees about what counts and what doesn't, but here is one I have used to assist my law students recently:

Generally harassment is unwelcome, unsought and unreturned behaviour by a person or group that tends to offend, humiliate or intimidate, and interferes with your right to work in a non-threatening environment. Forms of harassment can range from repeated apparently trivial behaviour to behaviour of such a significant nature that it has a detrimental effect on your ability to engage in normal activities.

Sexual harassment is unsought, unwanted attention of a sexual nature. Sexual harassment may be intentional or unintentional and is not confined to any gender or sexuality. It may include language, visual material, or physical behaviour of a sexual nature that is unwelcome or offensive to you and is either repeated, or of such a significant nature, that it has a detrimental effect on your ability to engage in work activities.

However, it is important to understand that harassment does NOT include appropriate compliments, behaviour based on mutual attraction, friendly banter which is mutually acceptable or constructive coaching and feedback.

Of course, it is the last part of this definition that is the most difficult part. How do we decide what are appropriate compliments? What if you thought your behaviour was based on mutual attraction at the time but changed your mind later, looking back on it? When is friendly banter mutually acceptable?

It is important to take a commonsense and honest approach to these sorts of questions, and also one that is not purely subjective. Probably the best way of looking at it, and one which is common within the law, is to inject an objective element by asking what would an ordinary, reasonable person standing in the shoes of the person complaining answer to those questions, if they looked at all the circumstances of each situation.

(Cheer emphasises that this is a practical suggestion, not an interpretation of employment law. Under employment law if a complainant's evidence is accepted that she or he did indeed find the language or behaviour unwelcome or offensive, that is sufficient. However, additionally, a complainant does still have to demonstrate "detrimental effect," which is objective, and the burden of proof is also a high one.)

What kind of confidentiality agreements are there and what weight do they carry? e.g. initial employment contracts, non-disclosure agreements, confidentiality agreements in agreed settlements over harassment complaints, and professional disciplinary tribunals.

You have identified a number of situations where an agreement to keep something confidential is reached between parties and formalised in some way. The important thing to remember overall is that a confidentiality agreement is usually simply a private contract or a clause in a contract where the parties agree to keep certain information confidential between them.

Of course, the circumstances of each agreement will differ, but to be binding and enforceable, such agreements require that the parties have capacity to enter into the agreement, that they have a clear, mutual understanding about what is being agreed to, and what the law calls consideration is exchanged by the parties.

This last requirement means that something of value is provided to or at the request of a party in return for a promise of some kind. With a confidentiality agreement, most often a monetary payment is given in return for a promise to drop a claim of some kind against the paying party.

A clause in an employment contract which states the employee must not say or do anything to bring the employer into disrepute is not a confidentiality clause.

Most commonly it could be used during the employment contract to discipline or fire the employee, depending on the seriousness of what they have done. If it is used wrongly in those circumstances, the employee might have a personal grievance against their employer.

After the employee has left that place of employment, the validity of such a clause depends on how long it is supposed to continue in effect and to what extent. It could be challenged as being in restraint of trade if it is used by the employer to pursue an ex-employee for telling the truth about the firm at a later stage. It all depends on what is in the clause.

CHRIS MCKEEN / STUFF Alison Mau is leading the #MeTooNZ investigation with Stuff.

How is contract confidentiality different from court-ordered name suppression?

Court-ordered suppression is a legal order imposed or granted by a court during proceedings (criminal or civil) which prevents the parties (and media) from publishing certain information for a limited time or sometimes permanently.

The most common form is probably orders made under the Criminal Procedure Act 2011 which prevent media and others from publishing the names and/or particulars of parties involved in criminal trials or pending criminal trials.

Such orders can be discretionary (ie: even though the court has power to make such orders, the circumstances of the case may cause the court not to make such orders), but some are automatic, such as those which suppress the names of those accused of sexual offences in order to protect the identity of victims involved. A person who has suppression, whether court-imposed or statutory, may ask to have it lifted so they can tell their story.

What about the practicalities - realistically, will companies enforce any confidentiality agreement?

Of course companies have a right to sue to enforce a valid confidentiality agreement. However, whether or not they do so might be affected by the context.

In high profile cases, confidentiality agreements may be seen by the public as gagging orders and morally bankrupt, only made to protect the institution and the offender.

SUPPLIED Sexual harassment may be intentional or unintentional and is not confined to any gender or sexuality. (File photo)

Can we take anything from the fact that internationally these agreements have been deemed unconscionable - e.g. the Catholic Church in recent years?

International exposure may certainly have had an impact on how the Catholic Church is dealing with confidentiality agreements relating to child sexual abuse, for example. I understand the Australian Catholic Church agreed to waive all confidentiality agreements for that country's Royal Commission into Institutional Responses to Child Sexual Abuse. I am informed the Archbishop of Boston did the same, earlier. But it may also be possible to argue that as a matter of contract, a confidentiality agreement is unenforceable for a number of reasons:

1. Duress: A person may be able to argue that they only signed the confidentiality agreement because they were coerced into doing so. Under New Zealand law, you must first show that there was a threat or pressure of some kind and that threat or pressure was improper.

The person's will must have been overborne by the improper pressure so that her or his free will and judgment was displaced. The threat or pressure must actually have induced her or his agreement to sign. The threat or pressure must have been sufficiently grave to justify agreeing to sign, in the sense that it left them with no reasonable alternative.

This sort of argument might be able to be made, for example, where a young, junior employee was assaulted at work by a more senior, older colleague, and, while upset and traumatised about the event, was talked into a settlement and signing a confidentiality agreement after they complained.

Applying pressure of this kind to a vulnerable person in such a situation could be seen as improper, especially if accompanied by direct or implied threats such as 'you'll find it difficult to work in this town again.'

If there is duress of this kind, it makes the resulting confidentiality agreement what is called 'voidable' by the person who felt forced to sign. They could then raise duress as a defence to an action if they are later sued, or apply to a court for avoidance of the agreement.

One important thing to note is that it must be shown duress continued so that the person had no possibility of avoiding the contract earlier. It seems to me that it would be possible to argue that the fear of not being able to get a job in a closed profession could be seen as a continuing form of duress.

2. Undue influence: The law may also step in to protect a party who has been victimised by the influence of another. The general requirements are:

- A stronger and a weaker party;

- Unfair and improper conduct by the stronger party;

- The gaining of an unfair advantage by the stronger party;

- The dominant party then has to show the agreement was not the result of undue influence.

A presumption of undue influence does not exist in employment relationships, but can be demonstrated to arise from a real relationship of trust and confidence. If that sort of relationship exists, the party said to have acted wrongfully must show that the actions of the other party were voluntary and freely entered into. This is done most often by showing that independent advice was given and received and understood by the other party.

You can see why the same fact situation I have outlined when I talking about duress might also fit these sorts of arguments. However, in both cases, if independent legal advice has been given to the person and they still went ahead and signed the agreement, it might be harder to argue that the agreement should not be binding.

3. Unconscionable bargains (this may be what the Catholic church had in mind): The law may also intervene to allow a remedy where one party knows the other is labouring under a special disadvantage - eg: poverty, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of necessary assistance or explanation.

Though there may be some degree of overlap with undue influence, that concerns a person taking advantage of the relationship of trust and confidence they know they have with the other party to influence them. The requirements of unconscionability are therefore very similar:

- A stronger and a weaker party;

- Knowing unconscionable conduct by the stronger party;

- The gaining of an unfair advantage by the stronger party;

- The dominant party then has to show the agreement was not unconscionable.

Unconscionability will exist if the stronger party actually knew or should have known of the disadvantage of the other party.

Once again, you can see the hypothetical fact situation I have outlined above might support an argument of this kind, but also that receiving independent legal advice before signing a confidentiality clause in such circumstances would make it difficult to show special disadvantage existed.

I note that no reported cases, as far as I am aware, have involved the sort of hypothetical fact situation I have described. This does not mean the arguments cannot be made.

123RF Confidentiality agreements require that the parties have capacity to enter into the agreement, that they have a clear, mutual understanding about what is being agreed to, and what the law calls consideration is exchanged. (File photo)

If the confidentiality agreement covers something that could be seen as a criminal matter - e.g. sexual assault, rape - is the agreement still valid? Is it legal to try and cover up criminal matters through confidential agreements?

Again, there might be a possible argument that an agreement is unenforceable in such circumstances. Contracts to commit a crime, or which are prejudicial to public safety, or which interfere with the course of justice, are illegal at common law. The first two possibilities are less likely, but interfering with the course of justice has been held to clearly include agreements not to report offences to the police or other law enforcement agencies (Crimes Act 1961, s. 116, Conspiring to defeat justice). Any illegal contract is ineffective and title or property which is the subject of the contract cannot pass. This would probably mean that any payment made would have to be returned if the other party chose to pursue it.