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December 2022

Congress “Speaks Out” To Protect Employees Who Experience Sexual Assault and/or Sexual Harassment in the Workplace

In 2022, Congress passed two significant laws to establish protections for employees who experience sexual harassment or sexual assault within the workplace.  In March 2022, Congress passed the "Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act," which allowed victims of alleged sexual assault and harassment to invalidate some arbitration agreements and bring lawsuits in court.  Then, in November 2022, Congress passed, and on December 7, 2022, President Biden signed the "Speak Out Act." ("Speak Out").  "Speak Out" makes it illegal in circumstances involving workplace sexual harassment and sexual assault, for employers to enforce any agreement between the employer and former or current employees, independent contractors, providers of goods and services, and consumers that contain a non-disclosure and non-disparagement provision prohibiting any discussion related to sexual assault or harassment.

"Speak out" defines non-disclosure as an agreement "that requires the parties to the contract or agreement not to disclose or discuss conduct, the existence of a settlement involving conduct, or information covered by the terms and conditions of the contract or agreement."  S.4524 – Speak Out Act, 117th Congress (2021-2022).  Non-disparagement is defined as "requires one or more parties to the contract or agreement not to make a negative statement about another party that relate to the contract, agreement, claim, or case." S.4524. 

What Does "Speak Out" Mean in Practice?
The few employers who include non-disclosure and non-disparagement provisions to prohibit an employee from discussing workplace incidents must immediately remove and update their employment agreements. But, realistically, "Speak Out" has more "bark than bite."  A standard non-disclosure agreement signed at the time of employment is typically limited to the employee agreeing to keep the company's proprietary information confidential.  It is also not common for an employer to include a non-disparagement provision in a standard employment agreement.  "Speak Out" would have much more impact had it included post-employment agreements because non-disclosure and non-disparagement terms hold more value for the employer in severance and settlement agreements.

The legislatures on the West Coast have recognized the significance of non-disclosure and non-disparagement terms in settlement and severance agreements. "Speak Out" comes on the heels of similar laws recently enacted in Washington, Oregon, and California. Washington and California passed versions of the "Silenced No More Act."  California's version bars enforcement of non-disclosure and non-disparagement provisions in employment-related settlement agreements related to all claims of harassment, discrimination, and retaliation.   In contrast, Washington's version bars enforcement of non-disclosure and non-disparagement provisions in all employment agreements. The prohibition is not limited to sexual harassment or sexual assault but expanded to include all employment-related claims. Oregon enacted its "Workplace Fairness Act," which went into effect in October 2020, prohibiting non-disclosure and non-disparagement terms in agreements related to not only sexual harassment or sexual assault, but also in matters of discrimination and retaliation of any of the protected classes. Notably, Congress is encouraging other states to enact their version of "Silenced No More" by making it clear that "Speak Out" does not prohibit the enforcement of state or local laws governing non-disclosure or non-disparagement clauses that are at least as protective of the rights protected in" Speak Out."

You can find more on the impact of these federal laws in Gordon Rees' April 2022 discussion titled "The 'West Coast' Wave: The Expansion of Non-Disclosure Legislation From Sexual Harassment to Beyond – Employers Must Reconsider Their Non-Disclosure Terms," and February 2022 article titled "Congress Takes on #MeToo: No More Forced Arbitrations in Sexual Harassment Lawsuits."

Please reach out to the Gordon & Rees Employment Law team for further guidance and recommendations. 

Employment Law

Daniel O. Culicover
Sarah N. Turner

Employment Law