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Ad industry joins forces to call time on NDAs that protect sexual abusers

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By Ellen Ormesher | Reporter

May 12, 2022 | 10 min read

A coalition of advertising industry inclusion advocates, trade associations and action groups has been formed to launch the ‘Make NDAs Fair’ campaign and raise awareness of the systematic misuse of NDAs in adland in relation to sexual harassment cases.

In many cases, NDAs are perfectly reasonable and are used to protect confidential business information. Unfortunately, some in the advertising, marketing and media industries have seen the NDA’s darker side, where it is used to silence victims of sexual harassment and abuse, and to prevent them from speaking out about their experiences – even to their closest loved ones.

NDA

The campaign is endorsed by partners including TimeTo, Nabs, Outvertising, Bloom, Can, Creative Equals and Wacl

Nine months ago, Zoe Scaman published Mad Men, Furious Women, a blog post that brought to light countless stories of sexual and other harassment that many – particularly women and marginalized groups – have regrettably experienced while working within the advertising industry. The coalition has subsequently been formed with the aim of ensuring fair NDAs be included as a recommended commitment in the Code of Conduct of the industry’s #TimeTo initiative to eradicate sexual harassment.

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Launched today at the Creative Equals Rise event in London, the group is calling for agencies and leaders across the industry to adopt fairer NDA policies. It has been endorsed by partners including TimeTo, Nabs, Outvertising, Bloom, the Conscious Advertising Network, Creative Equals and Wacl, as well as a growing list of agencies that includes QuietStorm, The7stars, The Elephant Room, Media Bounty and The Barber Shop.

Speaking on how the initiative came about, Jerry Daykin, Outvertising’s representative for the coalition and a World Federation of Advertising (WFA) diversity ambassador, tells The Drum that Scaman’s article “did a brutally good job of surfacing some specific examples of behavior in our industry.“

He says: “Perhaps the most important thing that I learned from all of those stories was the secondary harm that NDAs seemed to be causing, both by further isolating the affected individuals and by potentially allowing for the same issue to happen again to other people.”

What is the issue?

Legal expert Shilpen Savani explains that, in employment contracts, confidentiality clauses are routinely used to protect confidential information. “There’s nothing wrong with this if employees understand what is being asked of them,” he says.

In some instances, however, a settlement agreement compromises allegations that are historic in nature and any financial compensation offered is mainly for past wrongs. It is also worth noting that the vast majority of employment claims are heard and decided by the Employment Tribunal in a public forum, where employers (and any wrongdoing employees) cannot avoid the glare of publicity and media attention, so when an employer insists on secrecy clauses within a settlement agreement this is extra protection that goes beyond what a judge in an employment tribunal can usually order.

Abuse can occur when the entire compensation payment made to the worker in a settlement agreement is made strictly conditional on complying with secrecy clauses and where any breach, however minor, can trigger a full recovery of compensation together with all associated costs.

These clauses will sometimes prevent the worker from telling anyone, including medical professionals and support workers, about their experiences. Others will permit disclosures to immediate family members or legal advisors, but not to friends or confidants.

The outgoing worker will also rarely be free to tell a third party or new employer why they left their previous position.

Additionally, employers routinely seek to protect the reputations of not only the employer but also all associated companies, their entire workforces and sometimes even their shareholders within a settlement agreement. In the worst cases, this can have the effect of shielding the alleged harasser and leave them free to continue their actions unchecked.

“This is not unique to advertising and is a problem that applies in other sectors too,“ says Savani. “We are asking decision-makers and their advisers to recognize this issue, which can happen unintentionally, and improve their practices.”

Creative director Jo Wallace has led the development of a campaign to mark the launch and calls on allies across the industry to share it across their professional social networks. “We’ve all heard horror stories from victims whereby the silence and isolation that follows an unfair NDA causes ongoing, recurring trauma,” she says.

“We’ve created a simple campaign that gives those who have been silenced a collective voice to raise this concerning issue. I urge everyone across the industry to listen and then help create meaningful change. Please pick some of the executions from our launch and share them far and wide across your own networks.”

Daykin, meanwhile, adds: “For me, as we kick this off, the most crucial first step is raising awareness that this is an issue at all. That means equipping people to start asking questions, to push for this change and to know where they can get support from Nabs or others. Of course, what comes next is a challenge to companies to consider their formal policies and approaches in this space.”

What does the campaign hope to achieve?

The campaign hopes to educate the industry about this misuse of NDAs so that more people are aware of it and can be in a position to challenge it. That includes better knowing your own rights, being able to support friends or colleagues in this situation and, for leaders, driving fundamental change within organizations.

It also publicly calls on marketing organizations to include a fair NDA clause visibly within their internal policies. As part of making a fair NDA commitment, they should communicate this clause to all existing and future employees and signpost basic training resources. The commitment should include:

  • Zero tolerance of obstructions to reporting workplace harassment and bullying

  • Compensation payments relating to workplace harassment, bullying or discrimination claims should be completely independent of secrecy obligations in settlement agreements

  • If non-disparagement clauses are used in settlement agreements relating to workplace harassment, bullying or discrimination claims, their scope should be strictly limited to the employer. Where individuals are included, this should be with the consent of the outgoing worker and limited to relevant individuals only

  • Every worker should be offered independent legal advice, at the employer’s expense, before signing an NDA or accepting a confidentiality/secrecy clause. A copy of any resulting agreement should always be available to the worker on request

However, as Daykin heeds, brands also have a role to play in ensuring NDAs are used correctly and do not exacerbate the issue of silencing sexual harassment and abuse. “Brands are far from innocent in this and we certainly need to ensure our own houses are in order too,“ he says.

“I am proud to be representing Outvertising and the WFA as we launch this, but in my day job [vice-president and head of media at Beam Suntory] we have recently shared a preview with internal teams and some of the key agencies we work with so they can look at how to respond. We are starting that process by presenting it to the Isba D&I community, sharing across TimeTo members and, of course, talking at Rise today. The global reality is that the legal situation and use of NDAs varies hugely across different markets, it will take a local approach to understand where it is relevant elsewhere.“

What should a fair NDA policy include?

  • Absolute freedom to report workplace abuse and sexual harassment

  • Paying compensation to settle a workplace abuse and sexual harassment claim has nothing to do with silence

  • Protection of reputation should apply to the employer only. No blanket protection for individuals

  • Workers should be independently advised before accepting an NDA

In July 2019, the UK government committed to legislate in this area “when parliamentary time allows.“ However, with no changes in law on the immediate horizon, the coalition concludes that the advertising industry move faster to eradicate sexual abuse of NDAs and confidentiality clauses and set an industry “best practice” standard.

“We believe this is one of the key steps – but not the only step – to take to reduce the sexual harassment and abuse that many of those in the marketing industry have regretfully experienced,” says Daykin.

The Drum and Make NDAs Fair would encourage all those affected by this subject to explore the resources offered by TimeTo and Nabs, including confidential one-to-one support where required through the Nabs Advice Line. Phone 0800 707 6607 or email support@nabs.org.uk.

If this is a topic you would like to discuss with us further, get in touch with Ellen Ormesher. If you would like to read more stories about work and wellbeing, subscribe to our newsletter here.

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