NDAs and the Myth of Mutual Agreement: Why “consent” under coercion is not consent at all

Non-disclosure agreements (NDAs) are often presented as neutral legal tools—contracts signed voluntarily by both parties to protect privacy and finalize disputes. In theory, NDAs are “mutual.” In practice, especially in cases of sexual harassment, assault, or workplace discrimination, they rarely are.

The myth of mutuality collapses under scrutiny. Survivors typically enter into NDAs during periods of immense stress, often after experiencing trauma, losing their job, or facing threats of reputational harm or costly legal battles. Power is almost always unequally distributed: the institution holds legal resources, HR control, and future employment prospects; the survivor holds their story—and little else.

Zelda Perkins, the former personal assistant to Harvey Weinstein, signed an NDA in the late 1990s after attempting to report Weinstein’s abuse. Years later, she broke the agreement publicly, exposing how it had constrained her for decades. Speaking before the UK Parliament in 2018, she stated:

“There was nothing consensual about the agreement I signed. I was presented with it as a done deal, with no room for negotiation and no option to refuse. I was told that if I did not sign, I would be sued, and I would lose everything.”—Zelda Perkins, UK Parliament, March 28, 2018

Her experience is far from unique. In a 2020 report by the Canadian Women’s Foundation and the Barbra Schlifer Commemorative Clinic, survivors described NDAs as “a form of re-victimization,” citing pressure to sign quickly and confusion about what rights they were giving up. Legal advice, if provided, was often rushed or conflicted. Many feared retaliation or blacklisting in their industry if they spoke out.

In this context, “agreement” is not a meeting of equals. It’s damage control—signed under duress, exhaustion, or economic fear. The language of mutuality serves to sanitize coercion.

The “choice” to sign an NDA is especially misleading when the alternative is litigation survivors cannot afford. Legal fees in civil suits can reach tens of thousands of dollars. Most survivors do not have the financial or emotional resources to pursue public trials, especially against institutions with deep pockets and seasoned legal teams. An NDA can appear to be the only viable option—one that buys peace at the cost of silence.

Some defenders of NDAs argue that survivors should retain the right to confidentiality. That’s true. But that right must be truly voluntary—not extracted through unequal bargaining power, intimidation, or false urgency. Genuine consent requires access to independent legal advice, time for reflection, and freedom from pressure.

At The Restitution Project, we support survivor-led resolutions—but we reject any framework that cloaks coercion in the language of choice. Real justice cannot be built on silence secured through imbalance. The myth of mutual agreement must end—because legal documents should never become instruments of harm.