“Speak Out Act” Against Sexual Assault & Sexual Harassment Signed Into Law
On December 7, 2022, President Biden signed into law the Speak Out Act. One purpose of the Act is to empower survivors of sexual assault and sexual harassment to come forward by nullifying the enforceability of pre-dispute non-disclosure and non-disparagement contract clauses relating to disputes involving sexual assault or sexual harassment. The Act arises out of the #MeToo Movement and is evidence that the movement is gaining renewed momentum following a period of quiet during the COVID pandemic.
Protecting Survivor Rights
In the Act, Congress made the following findings:
- Sexual harassment and assault remain pervasive in the workplace and throughout civic society, affecting millions of Americans.
- Eighty-one percent of women and 43 percent of men have experienced some form of sexual harassment or assault throughout their lifetime.
- One in three women has faced sexual harassment in the workplace during her career, and an estimated 87 to 94 percent of those who experience sexual harassment never file a formal complaint.
- Sexual harassment in the workplace forces many women to leave their occupation or industry, or pass up opportunities for advancement.
- In order to combat sexual harassment and assault, it is essential that victims and survivors have the freedom to report and publicly disclose their abuse.
- Non-disclosure and non-disparagement provisions in agreements between employers and current, former, and prospective employees, and independent contractors, and between providers of goods and services and consumers, can perpetuate illegal conduct by silencing those who are survivors of illegal sexual harassment and assault or illegal retaliation, or have knowledge of such conduct, while shielding perpetrators and enabling them to continue their abuse.
- Prohibiting non-disclosure and non-disparagement clauses will empower survivors to come forward, hold perpetrators accountable for abuse, improve transparency around illegal conduct, enable the pursuit of justice, and make workplaces safer and more productive for everyone.
Partial Nullification of Pre-Dispute Non-Disclosure & Non-Disparagement Clauses
The Act states that, with respect to a sexual assault dispute or sexual harassment dispute, no non-disclosure or non-disparagement clause agreed to before the dispute arises shall be judicially enforceable in instances in which conduct is alleged to have violated federal, tribal, or state law. The law defines “sexual assault dispute” as a dispute involving a non-consensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18, United States Code, or similar applicable tribal or state law, including when the victim lacks capacity to consent. “Sexual harassment dispute” means a dispute relating to conduct that is alleged to constitute sexual harassment under applicable federal, tribal, or state law.
Some employment agreements and independent contractor agreements contain generic non-disclosure or non-disparagement provisions that generally prohibit an employee or contractor from disclosing the employer’s trade secrets and other confidential information or disparaging the employer and its products and services. Those provisions are generally intended to protect an employer against unfair competition – not to prevent an employee or contractor from reporting sexual abuse or harassment. However, proponents of the Act pointed to cases where some employers reportedly used such pre-dispute contract provisions with the purpose or effect of inhibiting or chilling survivor speech rights. Such employer conduct could violate longstanding federal, state, and local fair employment laws that prohibit unlawful discrimination, harassment, and retaliation for the exercise of protected rights, such as the protected rights associated with reporting or filing a complaint of sexual harassment. The Speak Out Act now provides additional protection relative to claims filed under federal, state, or tribal law on or after December 7, 2022.
Vast Majority of Non-Disclosure & Non-Disparagement Provisions Still Allowed
The Act doesn’t affect pre-dispute non-disclosure and non-disparagement provisions as applied to any matters other than sexual assault and sexual harassment disputes. For example, nothing in the Act prohibits an employer and employee or contractor from protecting trade secrets and other confidential information of the employer against unauthorized access, use, and disclosure by the employee, contractor, or others. Similarly, the Act doesn’t prevent parties from using such provisions in a settlement agreement relating to the resolution of a pending sexual harassment claim. But what about a separation agreement and general release that is offered to a departing employee as part of an employer’s conditional courtesy offer of post-employment separation pay, where the employee believes the employee has been subjected to sexual harassment that the employee has never previously disclosed to the employer? The author has some additional thoughts and recommendations for employers to deal with this issue and suspects it will be an area of future litigation for fair employment agencies and courts to resolve.