The Washington PostDemocracy Dies in Darkness

NDAs can muzzle sexual harassment victims. Congress could change that.

Nearly five years after #MeToo, a bipartisan group of lawmakers introduced legislation that would ensure workers can come forward with reports of sexual misconduct -- even if they signed common confidentiality agreements

New legislation would prohibit employers from using NDAs to cover up reports of sexual harassment, as jailed former film producer Harvey Weinstein did. (Brendan Mcdermid/Reuters)
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A new bipartisan bill would enable workers to report workplace sexual assault and harassment even if they signed a confidentiality agreement, nearly five years after the viral #MeToo movement exposed how the common legal tools can muzzle survivors.

Reps. Lois Frankel (D-Fla.) and Ken Buck (R-Colo.) told The Washington Post they introduced legislation Friday that would empower survivors to report instances of abuse in the workplace. The bill, called the “Speak Out Act,” would prevent employers from enforcing nondisclosure or nondisparagement agreements (NDAs) in instances when employees and workers report sexual misconduct.

“This is a preventive piece,” Frankel said. “When companies that are going to have offenders are aware that they cannot hide illegal sexual harassment, that they cannot put it under the rug, they’re going to take more steps from the get-go to keep it from happening.”

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NDAs are standard features of employment contracts that protect sensitive company information. They’re common across industries: Over one-third of the U.S. workforce is bound by an NDA, according to a 2018 Harvard Business Review report. In 2017, an avalanche of media reports about sexual harassment exposed how some of the country’s most powerful companies and men — including Hollywood mogul Harvey Weinstein, Bill Cosby and Fox News CEO Roger Ailes — used these agreements and confidential settlements to resolve claims of sexual assault.

Critics of NDAs say they have contributed to a culture of silence around sexual harassment, allowing perpetrators to continue their abuse while survivors face potential legal consequences for speaking publicly about their experiences. NDAs are sometimes included in legal settlements that stem from allegations of sexual assault. Companies can sue workers for breaking a NDA. Sometimes, just the possibility of legal retaliation is enough to keep workers from coming forward with their stories of abuse.

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The publicity prompted calls for restrictions to ensure the agreements could not be used to cover up illegal conduct. Several states — including California and New Jersey — have passed laws to ensure the agreements can’t be used to conceal sexual harassment.

Some companies, including Salesforce, have proactively adopted these protections for their workers across the country.

While notable, these policies are unevenly distributed to a smattering of workers across the country. The Speak Out Act’s co-sponsors say that broader federal protections are needed to ensure standard protections for workers. Frankel said the legislation was in part inspired by congressional hearings that have highlighted how widespread sexual harassment is. She said lawmakers have heard from tech workers, waitresses, hotel maids, farmworkers and a welder about their experiences with rape and harassment at work.

“This was not just an issue for the movie stars and television stars,” Frankel said.

After these hearings, the need for transparency around workplace harassment emerged as a rare area of bipartisan consensus. In March, President Biden signed a bipartisan bill into law that would end forced arbitration in sexual assault and harassment cases, in which employees waive their rights to sue their employers and are instead required to settle their disputes outside the court. Biden said companies benefit from the lack of transparency around this process, and that it denies survivors of sexual harassment “a voice.” Buck said the new legislation is a “natural” continuation of that work.

Co-sponsors include House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.), as well as Reps. David N. Cicilline (D-R.I.), Pramila Jayapal (D-Wash.), H. Morgan Griffith (R-Va.), Cheri Bustos (D-Ill.) and Burgess Owens (R-Utah), according to Frankel’s office. The bill also has the support of bipartisan senators, including Sens. Kirsten Gillibrand (D-N.Y.), Marsha Blackburn (R-Tenn.), Mazie Hirono (D-Hawaii) and Lindsey O. Graham (R-S.C.).

The Speak Out Act does not go as far as the California state law, which also applies to reports of racial discrimination and harassment in the workplace. Buck said he was focused on sexual harassment after the recent success with passing the legislation addressing forced arbitration, but he signaled that Congress could consider similar protections in the future.

“Sexual harassment is a particularly heinous act,” he said.

The bill follows advocacy from survivors of workplace sexual harassment, including Gretchen Carlson, the former Fox News host who went public with accusations that she was sexually harassed by Ailes, the company’s former CEO. Her lawyers initially said she could not sue Ailes because of a forced arbitration clause in her employment contract.

“This legislation is a significant moment for millions of Americans who have been forced to suffer in silence even as they have experienced or witnessed sexual harassment and assault in the workplace, and who are currently prevented from disclosing the truth to colleagues, friends, and even family members,” said Carlson and Julie Roginsky, the co-founders of the nonprofit Lift Our Voices, in a statement. “This culture of silence protects predators and drives countless women and men from their jobs and careers.”

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