January 2023 | Volume 14, Issue 6

Read the full article on PBS.

According to the article, President Joe Biden recently signed legislation curbing the use of confidentiality agreements that block victims of sexual harassment from speaking publicly about misconduct in the workplace.

White House press secretary Karine Jean-Pierre said Biden had acted on the bipartisan Speak Out Act, which bars the use of nondisclosure agreements that employees or contractors are required to sign, often as a condition of employment.

The new law, among the workplace changes pushed in the wake of the #MeToo movement, applies to any nondisclosure agreements, also known as NDAs, signed before a dispute has occurred.

“Instead of protecting trade secrets as it was initially intended, abusive use of NDAs silence employees and covers up serious and systemic misconduct,” said New York Senator Kirsten Gillibrand, a Democrat who introduced the measure.

The law would make existing nondisclosure agreements unenforceable. It also would apply to any agreements between providers of goods and services and their customers.

Gillibrand cited massage parlors and assisted living facilities as examples of places where mandatory NDAs have been used.

Any agreements signed after a dispute or regarding any other allegations, such as discrimination based on race or religion, would not be affected by the law.

Employers and consumers sometimes unknowingly sign away their rights with the agreements and that allows harassment to continue by silencing victims and shielding perpetrators, a group of Democratic and Republican lawmakers said in a statement last month after the House passed the measure on a 315-109 vote.

“Today, 1 in 3 workers are subjected to NDAs that hide sexual misconduct in order to protect a business’s reputation,” the lawmakers said. “We’re taking the gag off of survivors and pushing businesses to create safer work environments.”

The Senate approved the measure unanimously.

Former Fox News anchor Gretchen Carlson, who accused the now-deceased network CEO Roger Ailes of making unwanted advances and harming her career when she rejected him, pushed for the change and has spoken about how the NDA she signed has barred her from telling her story.

The law would not apply to Carlson’s NDA, which was signed as part of a reported $20 million settlement with Fox News.

The law follows another bipartisan change Biden approved in March that gave workplace victims of sexual assault or harassment the right to seek resource in the courts rather than being forced to settle cases through arbitration. The process often benefits employers and keeps allegations from becoming public.

Both measures, coming five years after the #MeToo movement sparked a global reckoning against sexual misconduct, received rare, broad bipartisan support in Congress.

Gillibrand said she is working with South Carolina Republican Senator Lindsey Graham, who partnered with her on the bills, to pass similar laws related to age discrimination in the workplace.

Discussion Questions

  1. Explain the Speak Out Act.

    Enacted by the U.S. Congress in 2022, the Speak Out Act prevents the enforcement of non-disclosure agreements in instances of sexual assault and harassment.
  2. What are nondisclosure agreements (NDAs)?

    A nondisclosure agreement is a legal contract between two or more parties (e.g., between an employee and an employee) in which the parties agree not to disclose any information covered by the agreement. As the article indicates, although NDAs might have been originally intended to protect the disclosure of trade secrets and other proprietary information, their use has been extended to the non-disclosure of other sensitive, more controversial matters that arise in the employment setting (e.g., sexual harassment).
  3. As the article indicates, any agreement signed after a dispute (i.e., a settlement agreement) or regarding any other allegations, such as discrimination based on race or religion, would not be affected by the law. In your reasoned opinion, should the Speak Out Act have been more comprehensively written to address such matters? Why or why not?

    This is an opinion question, so student responses may vary. In your author’s opinion, although the non-applicability of the Speak Out Act to settlement agreements is arguably to be expected since settlement agreements typically include non-disclosure and the non-admission of liability as essential terms, it is much more difficult to rationalize the non-applicability of the Speak Out Act to matters related to workplace discrimination based on race or religion. In terms of those who sponsored the Speak Out Act (New York Senator Kirsten Gillibrand and others), perhaps a “watered-down” version of the legislation was viewed as necessary to garner enough votes to pass it.