“Speak Out Act” Helps Protect Rights of Sexual Assault and Sexual Harassment Victims to Disclose Abuse
Jan 20, 2023 | Written by: | Share
On December 7, 2022, President Biden signed the Speak Out Act into law. This new law bars judicial enforcement of nondisclosure and non-disparagement clauses related to allegations of sexual assault and sexual harassment when these clauses are part of agreements entered into “before the dispute arises.”
The intent of the bill was reportedly to prevent “Me Too” scenarios where alleged victims of sexual harassment or assault were limited in their ability to come forward publicly with their allegations. Under the language of this new law, once an allegation of sexual assault and/or sexual harassment is made, a dispute has “arisen.” This ensures that “victims and survivors have the freedom to report and publicly disclose their abuse.”
Of note, the Act does not apply to agreements entered into after a sexual harassment or sexual assault dispute has surfaced. Therefore, separation and settlement agreements entered into after an employee makes a claim alleging sexual assault or harassment are not impacted, and employers may still use such agreements in resolving a dispute once it has arisen.
Importantly, the Act does not define what constitutes a “dispute” or whether a “dispute” includes internal complaints of sexual assault or harassment where the employee has not filed an agency charge or lawsuit. Therefore, there exists some ambiguity regarding the circumstances that will trigger a dispute for the purposes of this law, and the meaning of this phrase will likely be the subject of future litigation.
Also under this new law, a severance or settlement agreement would still be enforceable, even when entered into before a “dispute arises.” Only blanket preemptive nondisclosure and non-disparagement provisions commonly included in many types of agreements between employers and employees would be unenforceable when they concern claims of sexual assault and harassment.
Further, the Speak Out Act is not retroactive. This means that although it covers agreements entered into before December 7, 2022 (the effective date), it does not impact clauses entered into before a dispute arose but where that dispute was active before the Act’s December 7th effective date. It also specifically allows employers to continue the use of nondisclosure provisions to protect their trade secrets and other confidential and proprietary information.
Finally, while the new law does not specifically provide for penalties when there is a violation, such a violation could potentially void an agreement in its entirety.
As we await further guidance on the Speak Out Act, employers should confer with counsel to review their contracts, employment handbooks and agreements, and other employment documents for compliance with the Speak Out Act. If you would like to speak with one of the Gebhardt & Kiefer employment law attorneys, please feel free to reach out to our office.
Sharon M. Flynn, Esq. is a partner with Gebhardt & Kiefer, PC, and practices primarily in the areas of general litigation, employment law, and insurance defense.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.