The ubiquity and misuse of NDAs as a shield against accountability

MAST is delighted to present the first of two guest posts from Stephanie Krehbiel, Executive Director of Into Account, an advocacy organization that supports survivors & allies seeking justice, accountability, & recovery in Christian (and quite often Mennonite) contexts. Learn more about Stephanie’s perspective on advocacy and accountability in this interview. Check out the many valuable resources on their blog. The good people at Into Account offer free support to survivors, and they can always use financial support for their important work.

These posts focus on nondisclosure agreements or NDAs. In an internal statement to MCC staff (obtained by MAST), MCC Executive Directors stated that they estimated that NDAs had been used “less than half a dozen times in the past 12 years.” MAST is aware of 12 cases so far where NDAs have been offered. In three cases, the individual or couple refused to sign. In the other cases we know about, an NDA was signed. We don’t know the exact year for all of these cases.

(These two posts have been lightly edited from their original form as Facebook posts, posted on June 26, July 3 and July 11, 2024.)

I've been trying for years to get Mennonites to start paying attention to abuse-related NDAs, and mostly I feel like I've failed. Mennonites have so much trouble believing that their institutions are like other institutions. But that's the case for every religious group that has its own institutions, and I have yet to encounter a denomination or megachurch that hasn't followed the lead of the Catholic hierarchy and wealthy perpetrators like D0n@ld Tr*mp and jumped on the NDA bandwagon. The comprehensive silence they can buy with that hush money is just far too tempting.

The open letter and petition concerning workplace abuse at Mennonite Central Committee has a lot of people in my Mennonite friends circles especially asking questions about NDAs, but this information is broadly applicable, because NDAs have become ubiquitous.

My experience with NDAs is limited to the spheres in which they're unambiguously problematic: as a means of controlling the autonomy of abuse survivors, particularly in religious institutions. And my perspective, of course, is as an advocate for survivors, not as a lawyer. A lawyer will give you a lawyer's perspective. I'm going to give you a victim advocate's perspective.

Let’s start with some basic points about NDAs:

1) NDAs began as a legal means to protect intellectual property. There are also legitimate usages that protect personal information; for instance, as an advocate I’ve signed versions of them when supporting survivors in conversations with lawyers for the sake of preserving attorney-client privilege.

2) Over the past several decades, NDAs have morphed from their original IP-protecting purpose to what a recent article in The Cut/New York Magazine called “the defining legal document of our time.” The movement to end their misuse arises from a widespread recognition that they’ve become a shield against accountability for abuse, harassment, and discrimination.

3) Questions about the legality of NDAs, or of breaking them, can be difficult to answer because different jurisdictions have different laws governing their usage, and those laws are frequently untested.

The most succinct explanation I’ve seen for the range of NDAs used in the Christian institutional world comes from the website of the international, Christian-focused campaign #NDAfree. From their FAQ page:

“What’s the difference between a non-disclosure agreement, a confidentiality agreement and a gagging agreement?

Nothing – they are all names for the same thing. They can be found as a clause or number of clauses within a wider agreement – normally called a settlement agreement. They can also be a standalone agreement – signed before commencement of employment or before parties begin discussions.”

In an excellent educational video, the Canadian/UK organization Can't Buy My Silence breaks down the history of proliferation of NDAs, the power imbalance in play when an employer uses them, the chilling effect they have on abuse reports, and the way they impact organizational culture in about five minutes. See it here: https://www.cantbuymysilence.com/nda-info

In a bit of fortuitous timing, a new investigative article about NDAs came out in The Cut recently. It's a fascinating, educational read. I'm going to conclude with some quotes here:

“In its simplest form, the nondisclosure agreement is a contract that prevents someone from saying something in exchange for something else...A ‘confidentiality agreement’ is just another name for an NDA, while a non-disparagement agreement gives the same acronym a narrower focus: You can’t say something mean.”

“It costs a company almost nothing to distribute, and a corporate legal team exists in part to find ways to avoid even the possibility of risk. ‘It’s become an arms race,’ Vincent White, an employment lawyer in New York, told me of the increasingly byzantine and threatening NDAs he has seen. ‘Every single year, there are new provisions and new tactics to increase the level of control and increase the level of silence.’”

“While she wasn’t interested in talking publicly about the incident that had led to her NDA, she did care about the process. ‘The biggest problem wasn’t my own difficulty with it emotionally — and it was difficult to have someone say, ‘This thing happened, and you can’t talk about it as long as you live’ — but the normalization, the standardization, the communal shrug,’ she said.”

“For all the farcical ways in which NDAs have spread, their most insidious uses have also continued. Women are more likely than men to be made to sign an NDA, and a British activist group called Pregnant Then Screwed estimates that three-quarters of women who sign NDAs involving discrimination and harassment suffer mental-health effects. Only a quarter say they would sign one again. There have been victories in the effort to limit NDAs — including the federal Speak Out Act of 2022, which prohibits the enforcement of NDAs that cover sexual harassment or discrimination — but many of the laws have loopholes. Bad people are still doing bad things and preventing people from talking about them.”