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Proposed Law Would Stop NDAs From Silencing Workplace Sexual Harassment Victims

Court gavel and scales of justice silhouette with Sexual Harassment stamp

The "Speak Out Act" would be an important step forward for employees.

A bill recently introduced in Congress aims to make it easier for employees to report workplace sexual harassment and assault.

The "Speak Out Act," introduced in June 2022 by a bipartisan group of federal lawmakers, would make non-disclosure agreements (NDAs) unenforceable when workers report sexual misconduct, according to the Washington Post. This law would remove a possible threat of retaliation and chip away at the culture of silence around sexual harassment.

NDAs are exceptionally common in employment — in 2018, the Harvard Business Review found that over one-third of the U.S. workforce is bound by NDAs. When appropriately limited in scope, these agreements do have some legitimate purposes, such as protecting actual trade secrets and other intellectual property. Still, they shouldn't be abused to stop employees from exercising their legal rights.

This is one of the reasons the vast majority of cases of workplace sexual harassment go unreported — anywhere from 87% to 94%, according to the Equal Employment Opportunity Commission (EEOC). This proposed law would remove certain barriers, but it's important to note that those who report sexual harassment already have protections under current law.

A non-disclosure agreement cannot legally cover everything.

It's unfortunately common for employees who are under an NDA to think they have no options when they actually do. For instance, some victims may be hesitant to seek legal recourse if they have an NDA, but an NDA can't stop you from filing a report in good faith against an employer that you believe has violated the law. In particular, if you are sexually harassed at work, you can file a report with the EEOC, and if you are a victim of a crime, you can report it to law enforcement.

An NDA can also be found legally unenforceable under some circumstances. For instance, a legal NDA needs to be reasonable and specific about what is considered confidential information. Broad, unreasonable, or onerous language intended to oppress workers or cover non-confidential information can be grounds to invalidate the NDA. The power imbalance between employer and employee can also render an NDA unenforceable, depending on the circumstances.

Talk to an attorney about your legal rights and options.

In short, if you are subject to sexual harassment or other unlawful conduct in the workplace, don't assume that your employer has the power to keep you quiet. You may have more legal rights and protections than you think — but the only way to know for sure is to talk to an attorney about your specific situation, and you absolutely should get legal advice before you take action.

If you're concerned about retaliation or other consequences for reporting sexual harassment, we would be honored to listen to your story and explain your rights. Our conversation is confidential and there is no pressure to take legal action, just answers about your legal options. Give us a call or contact us online for a free consultation with Nilges Draher LLC.

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