On Thursday, September 29, the Speak Out Act passed in the Senate with bipartisan support. If it passes in the House and is signed into law by President Biden, it will be another important step toward holding perpetrators of workplace misconduct accountable. Following the passage of the Ending Forced Arbitration of Sexual Assault and Harassment Act of 2021 (the Ending Forced Arbitration Act) earlier this year, this development is a clear sign of progress toward eliminating the hurdles that survivors of workplace sexual assault and sexual harassment face when they try to seek redress for what they have endured.
What is the Ending Forced Arbitration Act?
The passage of the Ending Forced Arbitration Act last March was a landmark moment in the fight against sexual assault and sexual harassment in the workplace. The Ending Forced Arbitration Act makes forced arbitration clauses in employment contracts voidable insofar as they relate to sexual misconduct claims. Such clauses force employees to resolve their workplace disputes through arbitration rather than in court.
The Act was not an all-in-one fix, though. First, the Act addressed only sexual assault and sexual harassment claims, leaving access to justice for other types of discrimination for another day. Second, while the Act is retroactive, in the sense that it applies to contracts that were signed before its enactment, it does not automatically wipe out arbitration clauses. Rather, the employee seeking to make a claim that would previously have been barred by a forced arbitration clause must affirmatively invoke their rights under the Act. It is up to advocates and the public to know their rights under the Ending Forced Arbitration Act so that they can benefit from its protections. Finally, employees might still be barred from raising their claims if they signed pre-dispute nondisclosure agreements. The Speak Out Act addresses this last problem.
NDAs Complicate the Ending Forced Arbitration Act
A nondisclosure agreement (NDA) prohibits the parties to the agreement from disclosing or discussing conduct or information covered by the agreement. In some contexts, NDAs are benign or even necessary. For example, companies routinely require their employees to sign NDAs to protect trade secrets or other proprietary information. A law firm might require its employees to sign an NDA to better protect confidential client information. But an NDA can become a tool to silence survivors and protect perpetrators of workplace misconduct when its terms are too broad or if it is intentionally written for this purpose. If a survivor is bound by an NDA that covers the conduct at issue in their claim, the remedy that the Ending Forced Arbitration Act purports to provide is meaningless. No court can provide redress if the survivor is prohibited from telling their story.
Speak Out Act Against NDAs
Enter the Speak Out Act. If enacted, the Speak Out Act makes NDAs judicially unenforceable “with respect to a sexual assault dispute or sexual harassment dispute.” This means that survivors of workplace sexual misconduct can raise their claims, and employers cannot use previously signed NDAs to silence them. Like the Ending Forced Arbitration Act, the Speak Out Act is retroactive—it will apply to NDAs signed before its enactment, as well as NDAs signed after. To ensure that employers can continue to use NDAs to protect trade secrets and other proprietary information, the Act contains an express carve-out for such uses.
But, like the Ending Forced Arbitration Act, the Speak Out Act is not comprehensive. The Speak Out Act applies only to NDAs entered into “before the dispute arises,” and it does not demarcate when this occurs. Does a dispute arise when the misconduct is committed? When a claim is filed? At some point in between? The Act will leave that question for judges to determine at some future date when the issue is before the courts. If a dispute arises when a claim is filed, the Speak Out Act will provide much broader protection than if the dispute arises when the misconduct is committed. The former interpretation invalidates NDAs signed after the misconduct occurs, when the survivor has not yet decided to seek relief, while the latter interpretation would leave those NDAs in force as a barrier to accountability. Also like the Ending Forced Arbitration Act, the Speak Out Act only applies to sexual assault and sexual harassment, not other forms of discrimination. However, this narrow scope is necessary to achieve the level of bipartisan support required for the successful passage of the bill, and starting small will pave the way for future bills that go further.
Some state statutes already provide additional protection: New Jersey, Washington, and California have laws on the books that make all NDAs unenforceable with respect to applicable claims, regardless of when they were signed. These statutes do not contain the Speak Out Act’s “pre-dispute” limitation. Additionally, New Jersey and Washington’s statutes extend to nondisclosure provisions in settlement agreements as well as employment contracts. Lastly, all three states extend protection to all forms of discrimination—not merely sexual assault and sexual harassment.
The passage of the Speak Out Act in the Senate carries forward the momentum initiated by the enactment of the Ending Forced Arbitration Act earlier this year. Both Acts provide vital protections to survivors of workplace sexual assault and sexual harassment by making it easier for them to seek justice in court. But both Acts are also limited in scope, notably addressing only a narrow subset of workplace misconduct claims. While broader protections exist in some states, much work remains to be done.
If you need legal help after being sexually harassed or assaulted in the workplace, know that you can rely on the nationally recognized attorneys of Sanford Heisler Sharp. We excel at bringing lawsuits against national corporations, major companies, and large institutions in cases that other firms might not have the resources and experience to handle. For more information about your rights and our legal services, contact us online now and request a sexual violence lawsuit consultation.