Are NDA’s Unethical?

The CBC is proclaiming that Universities should protect students, not reputation: Professors call for elimination of confidentiality deals. On the face of it, this seems sound. What’s the deal?

ndaUniversity of Windsor law professor Julie MacFarlane has added her voice to a chorus of people calling for the elimination of non-disclosure agreements, or NDAs. She said senior officials at her university should not keep quiet about the allegations against a professor even if it means the school could be sued for breaking the terms of a settlement she believes it reached with him.

So a law professor is advocating for breaking the law. This seems problematic.

“I think the moral responsibility of an institution like a university has to come above its legal responsibility,” said MacFarlane.

But don’t they have a moral responsibility to respect the law? And don’t you?

The agreements, which some employers have used to protect the details of financial settlements with individuals who’ve made claims of harassment or misconduct, were cast into the spotlight by the #MeToo movement.

I covered this in my post US to Prohibit NDA Clauses Against Harassment Allegations.

In academia, non-disclosure agreements can be a way of getting a faculty member to agree to leave a university without the institution risking a costly defamation suit or entering into prolonged arbitration.

Saving the university from spending precious resources that could be used to improve education seems like a wise idea.

Some faculty and students say they are unethical, undermine universities’ commitment to transparency and leave students vulnerable.

They are like a plea bargain. Rather than incurring the cost of an expensive trial and the the risk of losing it, the university is able to remove the problem. This protects students at the university rather than making them vulnerable. I agree that it is not transparent, but secrecy is not unethical.

A professor at the university was accused of “creating and sustaining a climate of intimidation and fear among our students,” said a draft copy of a letter the six faculty members sent to university president, Alan Wildeman, provided to CBC News by MacFarlane. The letter claimed students’ complaints indicated that the professor was “cultivating friendships” with some students “that may be highly inappropriate in nature” while “expressing extreme hostility towards others.”

So he was allegedly creepy and a dick.

MacFarlane later learned that one of her research assistants, who did not want to be quoted when approached by CBC News, alleged she was subject to romantic advances and other forms of sexual harassment by the law professor. According to MacFarlane and a close friend of the research assistant, the behaviour included repeatedly asking her out and emailing the friend to get information about her. The friend, whom CBC agreed not to name, said the research assistant expressed concerns at the time that the professor had been pressuring her to go on dates with him and made her feel uncomfortable about their relationship.

A second hand claim that he asked a coworker out.

Several law students CBC News spoke with, including some who took classes from the professor, said he repeatedly crossed the line of appropriate student-teacher relationships. They said he would befriend students on social media and show up at student parties.

Was friendly and attended parties.

“There’s lots of drinking involved. I was surprised to see a professor at one of those kinds of events,” said Chris Rudnicki, a law student who was a member of a student group that clashed with the professor over certain positions it advocated on tuition and student affairs. Rudnicki, who was a mentor to other students during his time at the university, also heard from other female students. “One of my students was a first year, and she told me — completely unprompted — that [the professor] has been around her friends and had been making them feel very uncomfortable with the comments that he was saying and with the kinds of suggestions that he was putting to them,” he said.

An enemy of his made allegations about him making someone else uncomfortable.

Complaints against the tenured associate professor of law prompted six professors in the law faculty to contact the dean of the law school and the university president, Alan Wildeman, who launched a formal investigation.

OK, that makes sense.

In January 2014, the professor was relieved of his teaching duties while the university conducted an investigation into his conduct.

He was relieved of duty based on unverified allegations.

But in September of that year, MacFarlane said, she learned that while still on leave from the University of Windsor, he had secured temporary employment as an adjunct professor in the law faculty at the University of Toronto.

He probably had bills to pay.

“To fail to notify the U of T law school administration of the situation would be unconscionable,” MacFarlane wrote in an email to Wildeman. Wildeman said he was aware the professor was at U of T but that the administration had to act “within its legal obligations and constraints” when it came to discussing the investigation.

Much like the police won’t discuss a suspect until they are ready to bring formal charges.

“I would ask that you not have any communication with the U of T on this issue,” he wrote.

Makes sense. If she did so and the accused professor decided to sue the university, her causing him to lose his job could lead to the university having to pay civil damages.

But MacFarlane said she ignored Wildeman’s request and contacted colleagues at the University of Toronto. Weeks later, she said, the professor was no longer at the university.

Gutsy move. I guess this hasn’t made her a friend of the president.

The University of Toronto wouldn’t comment on his time there or the reasons for his departure, citing privacy.

This seems reasonable.

By early 2015, MacFarlane had learned from another colleague that the professor’s employment at the University of Windsor had been terminated under a clause of the faculty’s collective agreement governing dismissal for just cause and that he had grieved the dismissal. Under that agreement, such action can only be taken if the president of the school has grounds to believe that failure to do so would “result in appreciable physical or emotional harm to a person associated with or guest of the university.”

The president booted him claiming he was dangerous, and the professor threatened to sue for wrongful dismissal.

MacFarlane said she learned that the university, to avoid arbitration, later settled with the professor. The university would not confirm that a settlement was reached.

So the professor had enough of a case that the university would have been forced to go before an arbitrator over the grievance. This makes it seem like their case for firing him was weak.

MacFarlane said she learned in April 2017 that the professor was teaching at the University of West Indies in Mona, Jamaica, and that the law school there had not been told of the investigation into his conduct in Windsor. She emailed the dean of the law school, Leighton Jackson, to inform him of the University of Windsor investigation and he said he was “alarmed” at what he was hearing about his new hire. “I was not able to get any information regarding anything negative in relation to [him],” Jackson wrote in an email to MacFarlane.

As well he should not have, if the university settled to avoid arbitration over the professor’s grievance. Otherwise, they would doubtless have a law suit on their hands for breaching the agreement, and might have to pay significant financial damages.

The university did not inform the six professors who brought forward the students’ complaints of the outcome of the investigation and would not confirm to CBC News whether an NDA was signed. CBC News contacted several members of the University of Windsor law faculty, the former dean of law, the university president as well as faculty and the administration at the University of West Indies, but none, other than MacFarlane, would comment on the case.

Makes sense. They don’t want to put their institution in financial jeopardy.

In an email to CBC News, Wildeman, said the school does not discuss specific personnel matters. However, he said the university “strives to make as much information available to the public and other employers as it can in the context of relevant collective agreements, employment law and privacy law.

I.e. if they could, they would.

“There are repercussions of breaching the agreement, which include … reigniting the grievance or having him go and seek further damages because of damage to his reputation,” Patrizia Piccolo, a lawyer who specializes in employment law, said. “The employer is going to be concerned about making any statement publicly about any employee — in this case, the professor — because they’re going to be concerned about being caught in a defamation suit.”

And with MacFarlane going after him already, the professor would likely go scorched earth on them.

When it comes to serious misconduct that affects students, universities should refuse to sign non-disclosure agreements or similar deals that impose confidentiality, says MacFarlane.

I would agree, assuming the evidence was there. Clearly the administration wasn’t sure it was. Lawyers can be a cautious bunch.

“In the university community, we pride ourselves on this idea that we … try to foster a climate in our schools of openness and integrity and transparency. And what’s been done in this case is the exact opposite of all those things.”

It’s hard to disagree with this.

Stephen Saideman, the Paterson Chair in International Affairs at Carleton University, said that confidentiality almost always only protects the perpetrator and the university, not the student.

Also hard to disagree with.

“I definitely think that universities should try to avoid [these agreements] because their job is not to avoid lawsuits,” said Saideman in an interview with CBC News. “Their job is not to protect their reputation. Their higher priority is to protect their students.”

OK, here we part company. It is the job of the administration to protect the reputation and resources of the university. One would hope that they also care about protecting their students.

The nature of how confidentiality is enforced in cases of alleged harassment makes it difficult to establish what exactly a university’s ultimate determination was in any one case and prevents both students and teachers from ever learning how the matter was resolved.

If an agreement is confidential, that means those who aren’t party to it don’t learn about the details of it.

Charlene Senn, a professor of women and gender studies at the University of Windsor, said the preferable outcome is to have the perpetrator gone and the details of the dismissal publicly available. Still, if the school has to make a choice, it’s better to have a non-disclosure agreement than to rack up hefty legal fees justifying an employee’s dismissal in court and possibly have to pay damages, she said.

I agree.

When asked about the ethics of non-disclosure agreements at universities, Tanya Blazina, a spokeswoman for the Ontario Ministry of Advanced Education and Skills Development, would only say that the board of governors of each institution is responsible for how it addresses student complaints against staff.

Spoken like a true civil servant.

MacFarlane says the way her university handled the law faculty case is a black mark on an otherwise honourable institution. “I am proud of my law school, and I am proud of the work that my colleagues do, and I am proud of my university,” she said. “But in this respect, I think they have failed miserably.”

While I don’t agree with MacFarlane that the university is wrong to do what they did, I think it would have be interesting to see what would have happened if they had gone to court. Though doubtless it would have been hard on the accused professor, perhaps he would have been vindicated. On the other hand, maybe the truth of the accusations would have been demonstrated. Since the university has apparently signed an NDA, we will likely never know.

About jimbelton

I'm a software developer, and a writer of both fiction and non-fiction, and I blog about movies, books, and philosophy. My interest in religious philosophy and the search for the truth inspires much of my writing.
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