n November 16, Congress passed important legislation attempting to make non-disclosure agreements (NDAs) that often work to silence survivors of sexual harassment and sexual assault in the workplace a thing of the past. The “Speak Out Act” was championed by many employee rights attorneys and advocates, including former news anchor Gretchen Carlson and the American Association for Justice, which is an advocacy group of trial lawyers.
President Biden has indicated he would sign the bill into law if it reaches his desk. The Speak Out Act is the second #MeToo related bill to be signed into law this year. The first prohibited forced arbitration in cases of workplace sexual harassment or misconduct.
The Speak Out Act invalidates non-disclosure agreements signed by employees at the time of employment or prior to being subjected to sexual harassment, sexual misconduct, or sexual assault in the workplace. Employees will now be able to talk about their experiences unless they have another or separate confidentiality agreement in place preventing them from sharing what happened to them. According to Forbes, the NDAs covered by the Act are typically signed as part of new hire forms and “bind over one-third of the U.S. workforce.”
The Act does not, however, invalidate any confidentiality, non-disparagement or NDAs agreed to in the course of a confidential settlement of any claims associated with the misconduct.
Supporters of the Speak Out Act have long advocated that the type of NDAs that will be invalidated by the new law allows perpetrators to evade punishment and accountability by silencing victims. There is also the hope of a chilling effect on the potential perp—who now may know that if he or she behaves badly, the victim cannot and will not be silenced.
When an employee experiences sexual harassment or is subjected to sexual misconduct, it can be incredibly isolating. The employee may believe he or she is alone in the experience, however, now the Act will “allow women and all victims of sexual misconduct at work to end the isolation and speak with their coworkers about their experiences.” For that reason, it is viewed as a powerful piece of legislation in support of employee rights.
Many states have also taken up the matter of banning NDAs. Carlson and Julie Roginsky, former Fox News employee and co-founders of Lift our Voices, a group dedicated to pushing for legislation protecting survivors’ rights, say that with the passage of the Act, their advocacy will now turn to passing state legislation that goes further than Speak Out. By pushing for more expansive legislation invalidating NDAs in general, victims of discrimination and retaliation in the workplace will now have their voices heard like their sexual harassment and assault survivor brethren.
At MJSB Employment Justice, we stand with survivors who have experienced sexual harassment or assault. For anyone who has questions about how this legislation will impact their own work experience or existing agreements, we encourage them to seek counsel from our knowledgeable employment attorneys.