Gagging Orders Clearly Discriminate Against Women – So Why Are They Still Allowed?

NDAs have no place in modern society. There can never be a real assessment of the gender pay gap while the fog of corporate secrecy continues to hide the truth, journalist Harriet Marsden writes.
Harvey Weinstein used NDAs allegedly to silence his victims
Harvey Weinstein used NDAs allegedly to silence his victims

If you’ve got nothing to hide, so they say, you’ve got nothing to fear. Which begs the question: why, in our era of transparency, do companies still try to exploit gagging orders – and expect it not to come back to bite them?

Amnesty International, one of the world’s foremost human rights organisations, is the latest to make headlines after making an employee sign an NDA to settle an equal pay dispute, according to a report in The Times.

A former manager of Amnesty’s Edinburgh bookshop was reportedly forced to sign a gagging agreement after dropping a discrimination claim. She had objected to her salary because a male counterpart managing another bookshop was earning £4,000 more a year for essentially the same job, according to reports.

Amnesty contested, the case was rejected internally, but a settlement offer was reportedly made – with a cost: a confidentiality clause.

The gender pay gap, and equal pay, are still embarrassingly misunderstood and misrepresented. An English cultural aversion to discussing salary is cynically exacerbated by companies who actively bar or discourage their employees from doing so.

“Gagging orders are by nature designed to protect the powerful and disenfranchise the weak”

Many women blithely continue in jobs for years without knowing that a male coworker is getting significantly more for an equal – or even more junior role. That means that women’s salary expectations and demands are often way off the mark. And time and time again, job advertisements without a definitive pay range, with “salary dependent on experience” lead women to ask for less than men, based on their perception of their own “experience” and what they’re currently earning.

It’s still a persistent myth that women don’t ask for pay rises; they do, but they’re not getting them. Add that to the well documented phenomenon of men receiving pay rises they ask for where women don’t, and the gender pay gap becomes self-perpetuating.

As of 2018, all UK companies of more than 250 employees are required by law to publish their gender pay gap. Disappointingly, but not surprisingly for those of us watching, many companies published data that was either statistically impossible, out of proper context, or otherwise (intentionally or not) misrepresented. Nearly a fifth of companies left it until the last week before the deadline to do so.

Not so Amnesty International. Their report is a breath of fresh air: carefully broken down by sector, numbers clearly explained and properly contextualised next to the UK average. “Gender equality is a critical component of the human rights issues we work on,” they declare. Self-congratulatory, perhaps. But transparent, above all.

The only, repeat only, way of tackling pay discrepancy is transparency. There can never be a real assessment of the gender pay gap while the fog of NDAs and corporate secrecy continues to hide the truth.

Amnesty clearly knows this, better than most. And considering that NDAs and the silencing of pay disputes have been so consistently shown to discriminate against women and undermine steps towards equal pay, they have undermined their own laudable work on gender equality around the world.

Gagging orders are by nature designed to protect the powerful and disenfranchise the weak, which goes against everything Amnesty purports to stand for. And, given the increased scrutiny over NDAs and their repeated role in silencing victims of sexual harassment and assault – particularly in high-profile cases such as Harvey Weinstein and Sir Philip Green – what would have led Amnesty, of all companies, to take this step?

The apparent hypocrisy is deplorable, but in today’s age of digital democratisation and freedom of information, it’s also fundamentally stupid. NDAs, demonstrably, do not work.

People can, and do, break them – or, like in the case of Sir Philip Green, information can be shared under parliamentary privilege. When companies resort to gagging orders, it regularly becomes news in and of itself, undermining the point of the NDA in the first place, as well as the trust that their employees, or the public, place in them. It makes us wonder what they’re hiding, and why.

No company, particularly not a global forerunner in charitable human rights efforts, should be above the scrutiny of the public it presumes to serve. Amnesty’s work abroad has taught us that a gagged society is a sick society. So if we can’t trust Amnesty International not to gag women, even its own staff, then what is left?

Harriet Marsden is a freelance journalist.


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