Community legal group wants businesses and employer-side lawyers to adopt trauma-informed approach
A new report that examines the detrimental effects of non-disclosure agreements on survivors of workplace gender-based violence is urging the British Columbia government to ban or seriously restrict their use.
The 103-page study, “Gender-Based Violence in the Workplace and the (Mis)Use of Non-Disclosure Agreements,” was created by the Community Legal Assistance Society (CLAS). The report also calls on incidents of gender-based violence in the workplace to be reported as health and safety issues to WorkSafeBC.
Additionally, the findings suggest that the penalty for breaching an NDA should be changed to better align with typical contract law, says Jennifer Khor, supervising lawyer for CLAS and SHARP Workplaces in Vancouver.
“The proper recourse would be a general seeking damages [claim] and proving your damages as a result of the breach versus predefined damage amounts or requiring someone to pay back the entire settlement, because people received the settlement for the harm that was caused, not for being silent.”
When NDAs silence survivors
And harm is what the people who turn to CLAS and SHARP (which stands for Sexual Harassment, Advice, and Response Prevention for the Workplace) for assistance are experiencing. SHARP offers free legal advice to people who experience sexual harassment through their employment, but Khor says, by the time those people seek advice from SHARP, it’s often too late. In many cases, they’ve already signed NDAs and are suffering as a result.
Depending on the NDA itself and on the client’s understanding of it, Khor says people can be prevented from speaking with anybody about the situation, including mental-health counsellors or relationship partners. Being afraid even to mention anything related to the NDA can also cause trouble for people when job hunting or when they have finally found new employment, but become triggered by situations that occur in the workplace. Khor adds that some people are even too afraid of repercussions to tell their lawyers about the NDAs or give their names and details to crisis-support personnel.
“Too often, we see clients coming to us who had signed NDAs from the past, saying, ‘What can I do? This NDA is really affecting me. I didn’t think it would be like this. I can’t talk to people. I can’t seek help. Is there a way to get out of it?” Khor explains.
It’s happening increasingly. Khor says she is personally seeing a significant increase in non-disclosure and non-disparagement clauses in settlements. That increasing prevalence is, in part, what led to the report, which gathered BC-based data using surveys, in-person and online workshops and consultations in the efforts to collect input from people who had experienced gender-based violence personally, those who witnessed it, those who supported victims, and those who dealt with the aftermath of it on a professional basis, such as the province’s lawyers.
While Khor says she understands that lawyers are risk-averse and want to protect the interests of their clients, she hopes that employer-side counsel will start to look at the bigger picture and advise their business clients to address gender-based violence better before it requires the signing of settlements, thereby reducing the need for non-disparagement or NDA clauses.
“I would argue that if an organization was properly dealing with issues arising in the workplace, and the workers knew that, the workers — and people — would respect the organization.”
Along with incurring reputational costs, Khor says the study also shows that improperly handling gender-based violence situations results in increased financial costs.
What a trauma-informed approach requires
Even if companies and lawyers still believe in the need for NDAs, Khor hopes that a trauma-informed approach will be applied throughout the negotiation and settlement process, especially in situations where power is so unbalanced, as it is between an employer (and the employer’s lawyer) and an employee.
“Be fair. If you’re taking a trauma-informed approach, you’re more sensitive to what’s happening to the person on the other side. There’s always a way to advocate for your client without intimidating the other party.”
A big part of that approach is listening to victims and keeping them informed as to what’s going on. Khor says that people want to be heard and acknowledged, but they also need concrete information.
“In some cases, the perpetrator had been removed from the workplace, but [the complainants] weren’t even told that, so they were too afraid to go back to work. They weren't updated at the end [of the process]. It’s also the manner in which information is conveyed – whether there was sensitivity in recognizing that the person was impacted by what had been alleged to have happened,” explains Khor.
She adds that recognizing the long-term effects of NDAs can be challenging for employer-side lawyers who may never see all the parties involved or who won’t see the employee after the agreement is signed. Their job is finished at that point, so they don’t see the lingering or later-emerging symptoms of the trauma.
For lawyers interested in revising their approach to NDAs, Khor suggests reviewing the Canadian Bar Association's March tip sheet. CLAS also has an NDA tip sheet available, but it is designed to inform workers about their rights.
BC falls behind as other jurisdictions act
Still, while less restrictive NDAs would be an improvement, doing away with them is the better approach, in Khor’s opinion. She notes the growing push to restrict NDAs across Canadian provinces, including Prince Edward Island, which has enacted legislation to eliminate them, and Ontario, which is also taking a similar approach. In 2023, a resolution restricting NDA use in abuse cases passed at the CBA annual general meeting with 94 percent of the vote, and the Can't Buy My Silence campaign pushed for federal NDA restrictions for government workers the following year. Globally, Khor says 33 jurisdictions have outlawed NDAs in circumstances involving gender-based violence. So far, the government in BC has only promised to study the issue.
“It’s just disappointing to see a government that’s been a leader in gender-based violence issues taking such a long time to look at this, especially when there’s no cost in terms of implementing something,” says Khor.
CLAS originally began this report under the banner of one of its services, Stand Informed, which offered three hours of free and confidential legal advice to anyone in British Columbia who had been sexually assaulted. The Department of Justice Canada funded that service, but its funding expired on March 31, 2026. Now, CLAS is waiting until July to hear if the funding will be renewed. If it’s not, then the province will be without a free legal service that supports people who experience sexual assault outside of the workplace.
