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Speak Out Act would void NDAs in sexual harassment cases

Non-disclosure agreement

(wirojsid/Deposit Photos)

The U.S. Senate Judiciary Committee has approved a bill that would limit the enforcement of nondisclosure agreements (NDAs) in cases of sexual harassment and assault.

The Speak Out Act (S.4524) is similar to laws already in place in California, New Jersey, New York and Illinois. The bill would make it clear that survivors have a right to speak out, regardless of any prior agreement they signed. It would apply to victims of sexual misconduct as well as their workplace peers who have knowledge of illegal conduct.

Proponents of the Speak Out bill say that a culture of silence around sexual assault allows perpetrators to continue their abuse. Meanwhile, victims can face legal consequences for violating NDAs, and that threat can be enough to prevent some victims from coming forward.

The bill, which passed the 22-member committee on a unanimous vote, has bipartisan sponsorship and support.

Such broad support is “acknowledgment that silencing sexual assault and harassment survivors through the use of non-disclosure and non-disparagement clauses only perpetuates the cycle of sexual violence and harassment,” said Tad Thomas, president of the nonprofit American Association for Justice, in a statement.

“We are hopeful that this bill marks an important first step towards a world in which no survivor is ever silenced with an NDA,” Thomas said.

Many employers require employees to sign NDAs and non-disparagement clauses in hiring and severance agreements as well as legal settlements. However, state and federal laws are evolving in this area, and employers need to ensure these agreements don’t run afoul of those provisions.

In a similar development, Congress passed a bill earlier this year that banned the enforcement of mandatory arbitration agreements in cases of sexual harassment and assault.