MISOGYNY AND SEXISM are written into of the fabric of our lives, whether at home, in the workplace, at educational institutions or places of worship, and, sadly, even in our state government. Not surprisingly, history shows that the Massachusetts Legislature, itself, has not been immune from the impacts of these dynamics.
Last spring the House of Representatives took important and bold steps to strengthen its policies regarding sexual harassment in the workplace. In March, the House voted to implement additional rules for handling cases of sexual harassment. Included in this package was the option for a victim to initiate, enter into, and accept if they chose to do so, a non-disclosure agreement (NDA). The House agreed to uphold this option during its rules debate which took place in January of this year.
In the end, members were rightly proud to have chosen to implement rules which they had concluded were both straightforward and clearly defined for all.
The House’s decision to include an NDA option stood in contrast to the decision made by the Senate, which chose not to offer that particular option to its employees and members.
And while the House and Senate have different perspectives on the use of NDAs, subsequent narratives which frame NDAs as somehow disempowering to victims are, in our minds, inaccurate and unfair.
We believe the public needs to understand that NDAs, if structured in a certain manner, can be powerful and effective tools for any victim.
It is our view that NDAs are not fundamentally bad, and, in fact, can be extremely beneficial to a victim of sexual harassment. For example, they ensure a victim’s privacy and can protect against the professional or personal retaliation that can sometimes come from reporting an incident. As the National Alliance to End Sexual Violence, which represents leaders from dozens of statewide victims’ rights organizations, explained in their August 2018 position paper on NDAs and harassment, supporting a victim’s decision to enter in to an NDA is a trauma-informed approach that respects self-determination.
Certainly, there are important questions to consider when designing a universal NDA policy which establishes protections for victims. This requires input from a variety of leaders in the field as well as from survivors.
The House, in conjunction with outside counsel, undertook both a thorough evaluation of its current workplace climate, as well as an equally deep dive into leading literature and with thinkers on all sides of the issue to develop policies that center victims. Over the course of numerous meetings with victims’ rights groups, university think tanks, and crisis centers, the House established an NDA policy that meets a widely accepted axiom—survivors of sexual harassment deserve every available tool when handling their cases and trauma, including the option of NDAs.
A trauma-informed NDA ensures that only the victim has the power to choose such an agreement. A trauma-informed NDA is not mandatory, it is not a condition of employment, nor a prerequisite to begin an investigation. And, counter to some criticisms, a trauma-informed NDA does not silence a victim, but rather honors the fact that some victims would prefer confidentiality as well as justice. Both are possible, and both are sometimes desired. As Gina Scaramella, executive director of the Boston Area Rape Crisis Center, states, “Having the option of a free NDA is one way of giving survivors choice and privacy.”
We find it important to note that, in the House, NDAs are neither mandatory nor requisite. They are fully in the victim’s control in cases of sexual harassment. Moreover, despite changes to their rules, members and employees of the Senate may still enter into NDAs through outside counsel and at a personal financial cost.
That the issue of sexual harassment in the workplace is being given prominent attention, robust conversation, and debate in the halls of government is to be embraced. We should, however, work to ensure that differences of opinion do not thwart the intent or the professional guidance that is informing the decision to both enact rules and express opinions. We must keep these conversations in the open, with an eye towards reassessing whether or not we continue to meet the needs of today and tomorrow’s victims.
Debate aside, it is breathtaking that victims and their advocates have begun to speak more ardently about their experiences, including whether NDAs serve a positive purpose.
For that, we can all be grateful.
Marjorie Decker is a state representative from Cambridge, Kim Dawkins is executive director of Pathways for Change, Inc., which provides services to victims of sexual violence in central Massachusetts, and Risa Mednick is former executive director of Transition House in Cambridge, which focuses on domestic violence intervention and prevention.