Enacted by Congress in November, the Speak Out Act was signed into law by President Joseph Biden on December 7, prohibiting the judicial enforcement of a nondisclosure or nondisparagement clause agreed to before a dispute arises involving sexual assault or sexual harassment in violation of federal, tribal or state law.
Introduced in July, S. 4524 includes an exception for protecting trade secrets and proprietary information. The measure passed the Senate by unanimous consent in September and was approved in the House of Representatives in November by a roll call vote of 315 to 109.
Congressional findings in the new law included that 81 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, but an estimated 87 to 94 percent of those who experience sexual harassment never file a formal complaint.
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 according to the law, and nondisclosure and nondisparagement provisions in employment agreements “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.”
States have passed similar laws, including California and Washington.
The Speak Out Act is the second piece of legislation that President Biden has signed this year addressing sexual assault and harassment in the workplace.
On March 3, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act became law, which allows individuals asserting a claim of sexual harassment or assault to file suit in court despite the existence of a predispute arbitration agreement or class or collective action wager.
To read the Speak Out Act, click here.
Why it matters: Employers should be cognizant of the new law and keep in mind the prohibition on judicial enforcement of a nondisclosure or nondisparagement clause agreed to before a dispute arises involving sexual assault or sexual harassment in violation of federal, tribal or state law.