Victim-survivors are encouraged to speak out about sexual harassment. Defamation laws stop them in their tracks.
The price of justice for Brittany Higgins was days of intense cross-examination in a defamation trial, months of dealings with police and investigators and years of the media spotlighting what would have been the most traumatic night of her life.
But it’s not just high-profile women like Brittany Higgins who face a legal system geared to silence victims of sexual harassment and sexual assault if they speak up. In fact, experts say it happens more often than not to underrepresented and disadvantaged women.
Our defamation laws can stop a workplace sexual harassment claim before it even goes beyond the HR department of a company.
Watching the Lehrmann v Network Ten defamation trial unfold, solicitors and researchers Sharmilla Bargon and Regina Featherstone found the whole thing to be a “public example” of exactly what they had found in research they conducted last year.
“Respondent lawyers often use defamation as a tool to silence and end claims really early in the process,” said Sharmilla Bargon, Senior Solicitor at the Redfern Legal Centre.
Sharmilla Bargon is a Senior Solicitor at the Redfern Legal Centre. Credit: Supplied
“People should be emboldened to speak up where they’ve been sexually harassed… This kind of conduct is just one facet and one avenue that further silences this kind of claim being brought.
“It just compounds an already really fraught and difficult area for someone to take action.”
How do defamation laws work?
Sexual harassment and defamation laws almost go hand in hand. It is within the rights of people who experience workplace sexual harassment – the victim-survivor or applicant in a sexual harassment complaint – to disclose an incident with the worplace’s HR representative, a healthcare professional or even close family members and loved ones.
However, doing so can cause the alleged perpetrator – the respondent of a sexual harassment complaint – to issue a concerns notice for defamation: in other words, a document accusing the applicant of defaming the respondent’s reputation, and a legal threat requesting the applicant to cease the pursuit of legal action or face a defamation lawsuit.
Defamation law is complex and while there are defences, it is not a simple area of law. Regina Featherstone, a senior lawyer at the Human Rights Law Centre explained that despite its complexity, defamation is used a lot more than you might think.
“There’s a whole bunch of criteria that you have to meet to make a defamation claim,” Featherstone said, “but some of the criteria is that material has been published. And telling one person when making a sexual harassment complaint can count as ‘publishing’.”
Regina Featherstone is a senior lawyer at the Human Rights Law Centre. Credit: Supplied
Featherstone and Bargon, who are also Social Justice Practitioner-in-Residences at The University of Sydney, conducted research into the use of non-disclosure agreements (NDAs) and sexual harasment in 2024, and while defamation law wasn’t what they set out to investigate, they couldn’t ignore the many applicant lawyers who spoke of the trend of respondent lawyers sending defamation concerns notices as a response to a sexual harassment complaint.
“Defamation has a chilling effect on sexual harassment complainants” said Featherstone. “Complainants are stopped in their tracks when they receive a concerns notice”.
In the first of its kind in Australia, their research, Let’s Talk About Confidentiality, shed light on the trends of using different laws to silence some of the most disadvantaged women from speaking up about sexual harassment and assault at work.
What are NDAs?
NDAs are the term for non-disparagement and confidentiality clauses in a settlement agreement to prevent the applicant from discussing details of the matter with anyone else.
Following its 2018 Respect@Work report, the Australian Human Rights Commission (AHRC) developed practice guidelines in 2022 for solicitors on how NDAs should be used in workplace sexual harassment settlements. The guidelines recommend solicitors utilise NDAs in a less standardised and a more nuanced way, and inform clients of other settlement options that do not involve an NDA.
Despite the recommendations in the guidelines, NDAs are still being used, and they’re having a chilling effect on victims speaking out about workplace sexual harassment.
As part of their research at the University of Sydney, Featherstone and Bargon spoke with 145 solicitors who deal with workplace sexual harassment cases. They wanted to know the various negotiation and litigation tactics solicitors representing respondents in sexual harassment cases might use in out-of-court settlements.
The results were shocking: three quarters (75 per cent) of the legal practitioners they surveyed have never resolved an out-of-court workplace sexual harassment settlement without a strict NDA.
Many involved in workplace sexual harassment complaints don’t even realise NDAs are optional: 30 per cent of applicant lawyers and 50 per cent of respondent lawyers have never advised their clients so.
“Strict NDAs are ubiquitous,” Bargon from the Redfern Legal Centre said. “They are the default resolution mechanism in sexual harassment settlements.
“We have concerns that the use of NDAs isn’t properly being interrogated and considered by solicitors.”
In December last year, the AHRC announced new regulatory measures to enforce positive duty in preventing unlawful conduct in the workplace. The concept of positive duty refers to employers actively working to prevent “unlawful conduct” at work, rather than responding to or managing unlawful conduct after the fact.
But according to Featherstone and Bargon, these measures are at odds with the standardised use of NDAs when dealing with workplace sexual harassment.
“How does a workplace use an NDA… and also say they’ve eliminated sexual harassment in the workplace?” Bargon said. “How does one match with the other?”
Impact on victim-survivors
The Australian Bureau of Statistics’ Personal Safety Survey 2021-2022 highlights just how common workplace sexual harassment and sexual assault is.
The research found 1.7 million Australian adults (8.7 per cent) experienced sexual harassment in 2021-2022. One in three people in Australian workplaces were being sexually harassed, a range that has remained unchanged in the last six years.
When interviewing applicant solicitors, Featherstone and Bargon were told it was “commonplace” to file a sexual harassment complaint either within the workplace or with the Australian Human Rights Commission, before getting hit with a defamation concerns notice from the respondent weeks later.
“These applicant solicitors aren’t representing celebrities – they’re representing people in the community, lower paid workers, single income women, women of colour,” Featherstone said.
Workplace sexual harassment disproportionately affects women from diverse backgrounds. Last year, a report from Australia’s National Research Organisation for Women’s Safety (ANROWS) found almost 50 per cent of migrant and refugee women have experienced sexual harassment.
Women from several other minority groups have similar stories. It’s the same statistic for the LGBTQIA+ community (46 per cent). For women with a disability, 48 per cent have experienced sexual harassment in the workplace.
Alarmingly, 56 per cent of Aboriginal and Torres Strait Islander women said they have experienced sexual harassment in the workplace, according to the Respect@Work report from 2018.
It is these women, Featherstone and Bargon said, that find it harder to access legal help when they are hit with a concerns notice after filing a workplace sexual harassment complaint.
“As community lawyers, we have a particular interest in victim-survivors that otherwise wouldn’t be able to access legal help,” Bargon from the Redfern Legal Centre said.
“Community legal centres are drowning in requests for help, and we have to turn away so many people that might be coming to speak up for the first time about being sexually assaulted or sexually harassed at work. And we’re underfunded.”
What’s the solution?
Fundamentally, NDAs have a place in Australia’s legal system. People and organisations choose to use NDAs to settle workplace matters for a variety of reasons, which shouldn’t be discounted or ignored.
“We’re not saying NDAs are bad,” Bargon said, “but the reality is there’s a power disparity, and so making it a truly applicant choice is something that we need to support, given the power disparity.
“We need to introduce nuance in the discussion about the utilisation of NDAs.”
Last year, the government considered amending laws for applicants to have defamation immunity when it comes to workplace sexual harassment. In other words, victim-survivors who speak up about an experience with sexual harassment will, to some extent, be exempt from facing a defamation lawsuit.
Whilst this law reform never eventuated, Featherstone and Bargon said these reforms could help better protect victim-survivors.
“It should not be so hard to have somebody who has experienced sexual harassment come forward, make a complaint and allow that to follow through. There shouldn’t be that many hurdles,” Featherstone said.
Featherstone and Bargon also suggest better regulation on how solicitors use NDAs in out-of-court settlements from regulatory authorities will help clients make an informed decision throughout the legal process of a sexual harassment complaint.
It will also help limit the silencing effect of NDAs and defamation laws in Australia, laws that were created without the nuanced intersectionality lens that protects underrepresented women.
“While we might prioritise defamation and the right to somebody’s reputation, we need to prioritise somebody’s right to feel safe at work,” Featherstone said.
“Part of these conversations is always thinking about power and balance, and why the laws are the way they are.”
The post Victim-survivors are encouraged to speak out about sexual harassment. Defamation laws stop them in their tracks. appeared first on Women's Agenda.
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