2018-19 Schwartz Lecture on Dispute Resolution
“Pass-the-Trash”: How Universities Use Non-Disclosure Agreements to Protect Sexual Predators
Professor Julie Macfarlane | March 20, 2019 at 12:00 p.m. | Saxbe Auditorium
The use of non-disclosure agreements (NDAs) in cases involving termination for sexual misconduct has garnered growing attention. Plaintiffs’ lawyers frequently utilize NDAs to ensure that their clients may transfer to another position without the circumstances of their dismissal becoming known. Universities and other employers often see these Faustian deals as a way to head off potentially costly legal defenses, and as a sweetener to encourage settlement.
A strong moral case can be made against NDAs for terminations involving sexual misconduct (assault, harassment). Moreover, case law is emerging in the United States and Canada that holds NDAs to be unenforceable on public policy grounds, where public institutions such as universities use them without regard for student or public safety. In her lecture, Professor Macfarlane will consider procedures and processes universities could adopt in order to ensure that NDAs are not permitted in such circumstances, and that termination decisions predicated on sexual misconduct are supported by thorough, competent investigations and fact-finding.
About Professor Julie Macfarlane
Professor Macfarlane is a Full Professor in the Faculty of Law, and will be awarded a University of Windsor Professorship (the highest honour of the University) in the Fall of 2014. She has published widely in the area of conflict resolution, mediation, and legal practice. She is the author of the bestselling “The New Lawyer: How Settlement is Transforming the Practice of Law” (University of British Columbia Press 2008). Her student textbook “Dispute Resolution: Readings and Case Studies” is just going into its 4th edition (Emond Montgomery 2015). Both these texts are used widely in law schools throughout North America. In 2012 Julie completed a four year empirical study of Islamic divorce and published “Islamic Divorce in North America: A Shari’a Path in a Secular Society” (Oxford University Press), attracting much public and media interest.
Her new project is the National Self-Represented Litigants Project established at Windsor Law in the wake of the momentum created by her national study of self-representation, published in 2013. Professor Macfarlane is also an active mediator and dispute resolution consultant to a wide range of organizations and government agencies.