Congress Nixes NDAs for Sexual Assault or Harassment

Author: Michael Cardman, XpertHR Senior Legal Editor

November 17, 2022

The Speak Out Act - a bill that would make nondisclosure agreements (NDAs) and nondisparagement contract clauses relating to disputes involving sexual assault and sexual harassment unenforceable by the courts if they were signed before a dispute arose - has passed both chambers of Congress and is headed to the President's desk.

President Biden has expressed his support for the bill and is expected to sign it.

"Workers should not be silenced in the face of workplace sexual harassment and assault, or face retaliation for coming forward to report such abuse," the administration said in a statement. "Transparency is the best way to hold employers and perpetrators accountable. Prohibiting the use of predispute NDAs and nondisparagement clauses will increase access to justice and make the workplace safer for everyone."

Laws similar to the Speak Out Act already have been enacted in several states, including California, Maine, New Jersey, New York and Washington.

The Speak Out Act also is a companion to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, a federal law enacted earlier this year that eliminates the use of mandatory arbitration clauses by employers in cases of sexual assault and sexual harassment.