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Congress Limits NDAs in Sexual Harassment Claims, Sending Bill to White House

More than five years after the peak of the MeToo movement in the United States, Congress passed a bill limiting the use of non-disclosure agreements (NDAs) and nondisparagement clauses in workplace sexual harassment and sexual assault cases. 

The U.S. House of Representatives passed the Speak Out Act (S.4524) on Wednesday, 16 November, in a 315-109 vote. The U.S. Senate passed the bill unanimously in September.

The bill applies to signed predispute NDAs—agreements that are not uncommon for new or prospective employees at some organizations to sign during their onboarding. It also applies to a nondisparagement clause, which is “a provision in a contract or agreement that requires (one) or more parties  to the contract or agreement not to make a negative statement about another party that relates to the contract, agreement, claim, or case,” according to the bill.

“Often buried in the fine print of contracts of adhesion that workers and consumers sign every day to secure employment, goods, or services, these confidentiality clauses have contributed to the culture of silence in cases involving sexual misconduct,” said Jerrold Nadler (D-NY), U.S. House Judiciary Committee chairman, on the floor of the House. “As such, they have routinely enabled sexual predators to evade accountability.”

If enacted, the legislation would only apply to complaints of sexual harassment filed by current, prospective, and former employees, as well as independent contractors. The prospective law would not apply to disputes about discrimination of age or race, or other issues. 

“One in three women report having faced sexual harassment in the workplace, and often they can’t talk about it,” The 19th reported. An estimated one-third of the U.S. workforce is subject to NDAs, as referenced by multiple elected officials on the House floor.  

“But these appalling numbers do not even tell the full story. The Equal Employment Opportunity Commission found that the vast majority of survivors simply never report incidents of sexual harassment or sexual assault,” Nadler added.

The bill, which was sponsored by U.S. Senator Kristen Gillibrand (D-NY), will be sent to U.S. President Joe Biden for either a final signature or a veto. Previously, Biden's administration expressed support for the legislation.

Gretchen Carlson and Julie Roginsky, former Fox News employees, co-founded the advocacy group Lift Our Voices to seek an end to forced arbitration and NDAs. The two took up the effort after being forced to sign NDAs as part of sexual harassment settlements with the media company, Forbes reported. 

“The Speak Out Act is another milestone in our efforts to make workplaces safer,” said Roginsky in a press release. “It is an enormous step forward in ending the culture of silence that has prevented survivors and witnesses of workplace abuse from sharing their stories and it will go a long way toward ending the culture of toxicity that permeates too many workplaces.”