Photo via FGSW Instagram.
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News of Non-Disclosure Agreements—which are primarily used by corporations and tech companies to protect sensitive business information pertaining to the licensing, investing, or trading of products—being used in cases of sexual assault made its way into the mainstream with the exposure of Harvey Weinstein’s habitual abuse of young women in Hollywood. The #MeToo movement unveiled these confidential agreements as the primary mechanism that enabled powerful men such as Harvey Weinstein, R. Kelly, Bill O’Reilly, and Bill Cosby to continue their abuse for many years. As a result of the movement and the ensuing widespread criticism, several states have enacted partial bans on NDAs; however, universities across the United States continue to silence survivors of assault and discrimination via NDAs in order to preserve their prestige and protect their reputations.
Because many states have not committed to total NDA bans in assault cases, their universities remain uninhibited and uncriticized when employing them. While New York has updated its human rights law and banned the use of these confidentiality agreements in harassment cases (unless the victim prefers to sign one), this partial ban does not prohibit employers from suggesting the use of an NDA. Consequently, New York, like many other states, has failed to address the coercive tactics involved in the signing of NDAs. This partial approach to NDA usage grants New York based colleges—such as Fordham University—the freedom to use confidentiality agreements with both students and faculty members.
Facing union demands in the spring of 2023, Fordham defended its right to use these agreements. The Fordham Graduate Student Workers—CWA 1104 union (FGSW)—is organized around improving the lives of the graduate workers who play essential roles in the functioning of Fordham. From teaching core classes and running labs to providing administrative assistance, the members of provide critical labor to the institution. In its work, FGSW primarily focuses on contentious issues that affect union members as workers, and subsequently the educational services they provide to students. While they largely bargain for access to a living wage and affordable health insurance, the union also speaks out against NDAs as an institutional failing, which affects students and administration alike.
Fordham University currently uses Non-Disclosure Agreements to settle cases involving sexual, racial, or other forms of discrimination and harassment. Through the threat of potential lawsuits and expensive legal reparation, these NDAs prohibit those who have signed them from ever speaking about their experience or learned information. While Fordham has generally escaped criticism on this front, the FGSW are attempting to end NDA usage and force the university to provide adequate care to its students. The union aims to remedy this issue with a contract article that would ban the use of NDAs to silence survivors. However, Fordham has refused to negotiate in any meaningful capacity. Instead, they continue to insist that this legally binding silence protects victims—as well as Fordham’s reputation—by claiming that NDAs help survivors put painful experiences behind them. English PhD candidate and FGSW organizer Carolyn Cargile, who is heavily involved in negotiations with Fordham, disagrees:
“If a survivor doesn’t want to speak about their experiences, they don’t have to,” Cargile says. “They don’t need an NDA in place to ensure that, and the absence of an NDA won’t compel them to speak about something they don’t want to share. What the use of an NDA does ultimately is remove a survivor’s agency and ability to change their mind in the future. NDAs can also shield perpetrators and allow them to continue abuse, since NDAs legally keep knowledge of past abuses confidential.”
Because Title IX does not regulate every aspect of a university’s response to discrimination, Fordham is one of many academic institutions to adopt this practice. Title IX is a federally enforced educational amendment designed to protect people from sex-based discrimination by requiring universities to investigate reported incidents of abuse. However, it does not require them to report anything to the police. Interested in protecting themselves from bad reputations, universities can withhold investigative assistance from students only until they have agreed to remain silent about their experience. This process allows institutions to quietly let go of and pass abusers on to other universities. The offenders have no official criminal record and are able to move from institution to institution undetected and unpunished, further endangering faculty staff and students alike.
In short, NDAs protect abusers by forever prohibiting survivors from talking about their trauma or officially reporting their experience to the police.
Fordham specifically has a history of mismanaging sexual assault and harrassment cases in the interest of protecting its Jesuit reputation. Examples in recent years include the 2021 federal lawsuit filed against the university’s forging of a psychological report in order to discredit a student who reported being sexually assaulted by his roommate. Preceding this, the institution was criticized in 2018 for not only allowing an associate professor of philosophy with a multitude of Title IX complaints to remain on campus for over a decade, but also of punishing and censuring two female students who tried to warn others about his behavior.
Many believed that with the arrival of its first female and lay person president, Tania Tetlow, Fordham would better commit itself to standing with and protecting survivors. Since then, Tetlow has spoken on her commitment to these survivors and ensuring Title IX protocols are “up to standard.” Nevertheless, Title IX protocols have not changed, and so far, Tetlow’s bargaining team has only defended the institution’s right to NDAs.
While American collegiate institutions hesitate to address this issue, a multitude of European universities have committed to dropping NDAs. In the absence of NDA usage, these universities will be held more accountable for the ways in which they approach campus sexual assault. Survivors will also be afforded more opportunities, both on and off campus, to seek justice. Through the FGSW’s efforts, hopefully Fordham will soon follow suit.
The FGSW have prewritten a letter to Fordham leadership explaining the injustice of NDAs. The letter can be found on their website, and any person with a Fordham email is eligible to sign their name and let the administration know they stand with survivors.
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This article was edited by Sofia Benzi and Sydnee James.
