Esther Hwang, who reported being sexually assaulted by a co-worker at the Vancouver Symphony Orchestra, alleges she was forced to sign an NDA in order to have the man removed from the company.Jennifer Gauthier/The Globe and Mail
The Vancouver Symphony Orchestra has released an open letter to the classical-music community, pledging to never again ask a sexual-misconduct complainant to sign a confidentiality agreement.
The VSO also said it does not intend to take legal action against its former violinist, Esther Hwang, who last month told The Globe and Mail that the organization had put pressure on her to sign a confidentiality agreement in order to settle a sexual-assault complaint that she had made in 2019 against a man who was then a senior member of the orchestra.
By speaking publicly, she was breaking that agreement.
Ms. Hwang further alleged that, within weeks of signing the agreement, the VSO began to retaliate against her, first by offering her diminished roles and then dramatically cutting her hours to the point that she was no longer working for the orchestra. The VSO has denied that there was any retaliation and noted that Ms. Hwang was represented by experienced legal counsel during the negotiations.
A day after The Globe story appeared, the VSO sent Ms. Hwang a cease-and-desist letter, prompting intense backlash within the classical-music community and adding fuel to a continuing debate over whether the use of confidentiality agreements is appropriate in cases of alleged abuse and harassment.
Ms. Hwang says she was disappointed by the VSO’s statement.Jennifer Gauthier/The Globe and Mail
A committee representing the full-time members of the VSO issued a public statement in support of Ms. Hwang, applauding her for speaking out against what they called the “unethical and immoral” use of such agreements in instances of alleged sexual violence.
Influential Baltimore-based oboist Katherine Needleman launched a petition, demanding that the VSO agree to take no further legal action against Ms. Hwang.
The petition also asked the orchestra to commit to ending its use of confidentiality agreements – commonly referred to as non-disclosure agreements or NDAs – in instances of alleged harassment, discrimination, sexual misconduct or abuse.
The petition had received about 14,000 signatures by the time the VSO released its letter publicly Wednesday.
“Recent events have prompted important reflection within our organization, with heightened concern across our field and serious questions about safety, accountability, and trust in artistic institutions,” says the letter, which is signed by the orchestra’s board of directors as well as president and chief executive officer Angela Elster.
“Unfortunately, as a result of the confidentiality agreement, Ms. Hwang has felt silenced since that time. We acknowledge and regret the pain this has created. We also acknowledge that things have changed since 2019 and we can change as well … This is a welcome discussion, and the VSO is committed to evolving our processes.”
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In the letter, the orchestra notes that when Ms. Hwang filed her sexual-assault complaint, her allegation was treated seriously, and an external investigator was hired to probe the accusation.
This investigation into the alleged assault was never completed. As part of the 2019 settlement agreement – which saw Ms. Hwang receive about $7,100 and a guarantee that the alleged perpetrator would leave the orchestra – Ms. Hwang agreed to withdraw the complaint.
The letter also addressed the cease-and-desist demand, which referenced The Globe article as well as an e-mail that Ms. Hwang sent to musicians of the VSO after the story was published that included further details about the alleged incident and accusations of professional retaliation.
The VSO said it sent the legal demand because “unproven allegations” had been made against current VSO employees – not the alleged perpetrator, who left the organization in 2019. The VSO has an obligation “to protect the organization and its people from statements or actions that may be inaccurate or misleading,” the open letter says.
Going forward, the letter says, the VSO will no longer include confidentiality agreements in any future agreements that involve allegations of sexual misconduct, such as sexual assault and rape, unless a complainant requests one.
“We recognize there are other ways to safeguard a claimant’s desire for privacy and confidentiality if they so choose,” the letter says. The organization added that it “does not intend to take any steps to bring a claim against Ms. Hwang for the breaches of the confidentiality agreement.”
While expressing sympathy for Ms. Hwang’s experience, the orchestra also denied that she was subject to any professional reprisal and highlighted that an external investigation of this claim did not substantiate Ms. Hwang’s allegation of retaliation.
On Wednesday, Ms. Hwang said she was disappointed by the VSO’s statement.
“It took weeks of public pressure and negative media attention for the VSO administration to finally agree to stop using NDAs in cases of sexual assault. And they have failed to take accountability or apologize for forcing me into an NDA and threatening to sue me,” she said.
“Instead, in their letter they frame the issue as being about how I ‘felt’ silenced by the NDA and how I ‘perceived’ their cease-and-desist letter.”
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Ms. Needleman had similar concerns. She felt particularly worried that the orchestra did not unequivocally pledge not to go after Ms. Hwang, instead saying it “does not intend to” take further action. She also expressed concern that the VSO’s pledge to stop the use of NDAs was limited to allegations of sexual misconduct and did not extend to behaviour such as discrimination.
“They’ve thrown us the smallest bone that they can,” she said.
In an interview with The Globe, Ms. Elster clarified that the VSO will not take legal action against Ms. Hwang with respect to the confidentiality breach. She explained that the orchestra’s commitment to not using NDAs was limited to sexual misconduct in the letter because the organization wanted to speak very specifically to the situation involving Ms. Hwang.
“Certainly since my arrival in this job, which was January, 2020, it’s been an ongoing process to revise our HR policies and safe-work policies,” she said. “If there are other policies that need to be explored through a modern lens, we are committed to doing that.”