Protection against Sexual Assault and Sexual Harassment

The Speak Out Act is the most recent federal bi-partisan effort to protect victims of sexual assault and sexual harassment. Many employees are familiar with nondisclosure agreements. However, another form of agreement is a non-disparagement clause in an employment contract.

What is a non-disparagement clause?

The purpose of a non-disparagement clause is to prevent disgruntled employees from making derogatory comments about a company. Employees enter the agreement on the first day of employment, and it prevents company disparagement from that point forward.

How does the Speak Out Act apply?

Under this Act, non-disparagement clauses and nondisclosure agreements are not enforceable for sexual assaults or sexual harassment in the workplace. In the past, victims of this type of behavior had the obligation to remain silent. Now they can speak out and suffer no legal consequences.

However, the act does not apply to trade secrets or business information. In addition, the Act fails to clarify what would comprise a dispute. A dispute could refer to a lawsuit, a claim to the EEOC or CCHRO or possibly a report to the company’s HR area.

The bill passed in the Senate on September 20, 2022. The House of Representatives passed it on November 14, 2022. The White House expressed strong support for the Act and there is anticipation that President Biden will sign it into law.

How did the Act arise?

The #MeToo movement motivated legislators to take action and pass bills that would prevent forced arbitration clauses from concealing sexual misconduct. The first act Congress legislated was to prevent companies from forcing arbitration on employees who had been subjected to sexual harassment and assault. The name of the act was the Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.

New York State has passed laws since 2018 that prohibited nondisclosure agreements from settling sexual harassment claims unless the claimant wanted to maintain confidentiality.

(Reference: JD Supra

Do you face sexual harassment or assault issues in the workplace?

The Law Office of Peter A. Romero assists clients with employment law issues. Clients throughout NYC, including in Queens, Brooklyn, The Bronx and Harlem/Upper Manhattan turn to us for legal help. Call us at (631) 257-5588 or contact us online to schedule an appointment.