How the Speak Out Act Curtails the Use of NDAs Relating to Sexual Harassment

The MeToo movement has succeeded in exposing, in vivid detail, the ways in which powerful people committed acts of sexual harassment, sometimes for decades, without suffering consequences. The perpetrators of these acts were often the victims’ bosses or others in positions of authority. As such, victims who agreed to monetary settlements instead of taking legal action were often required to sign nondisclosure agreements (NDAs) as a condition. The widespread use of NDAs helped sexual predators avoid consequences for their actions and go on to victimize more employees.

In 2022, Congress passed the Speak Out Act, which prevents enforcement of NDAs as pertains to reports of sexual assault and harassment. President Biden signed it into law on December 7. Congress noted that 81 percent of women had experienced sexual harassment or assault at work and 43 percent of men had experienced such conduct as well. The new law, Congress said, is meant to encourage people to report sexual harassment without fear that such disclosure will affect their ability to obtain legal relief.

Under the Speak Out Act, employers are not allowed to enforce nondisclosure or nondisparagement agreements related to sexual assault allegations if the agreement was signed before the allegations arose. However, if an incident of harassment occurs and the parties then resolve it by negotiating a settlement, any NDA included in that agreement would be enforceable under the new law. In other words, a sexual harassment victim is free to go public with their allegations unless he or she voluntarily agrees to be bound by an NDA that is signed after the incident takes place.

New Jersey has a law on the books that goes further than the Speak Out Act. In 2019, the NJ Law Against Discrimination (NJLAD) was amended to prohibit inclusion of nondisclosure clauses in settlements of sexual harassment claims. So if you work in New Jersey and are sexually harassed or assaulted by your employer, you always have the right to speak out about what happened without fear of jeopardizing your legal remedies.

The new federal Speak Out Act and the NJLAD revision are major steps forward in curtailing restrictions on victims of workplace sexual harassment. Employees who are told they need to sign NDAs or non-disparagement clauses related to sexual harassment or assault in order to secure monetary damages should not sign and should immediately consult with a lawyer.

The attorneys of Deutsch Atkins & Kleinfeldt, P.C. in Hackensack represent New Jerseyans who have been sexually harassed at work, subjected to hostile work environments or retaliated against for reporting unlawful conduct. If you have a dispute with your employer that you’d like to discuss, please call 551-245-8894 or contact us online for a confidential consultation.