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Congress Passes Law Restoring Victims’ Voices, Banning NDAs In Sexual Harassment Cases

The U.S. House voted today to pass the Speak Out Act to restore the voices of victims of sexual harassment and assault. The law will allow employees to talk about their experiences with harassment or assault at work by invalidating nondisclosure agreements (NDAs) that force workers to remain silent in these cases.

The Speak Out Act unanimously passed the Senate in September and will now head to Biden’s desk for signature. The President has already signaled his support earlier this week. This bill will be the second #MeToo-related legislation to become law this year, as legislation prohibiting forced arbitration in these cases took effect in March.

NDAs are often included as part of the mandatory human resources forms that new hires must sign, and they bind over one-third of the U.S. workforce. Organizations use NDAs for a wide range of purposes, from protecting proprietary information to silencing victims of workplace abuse. The Speak Out Act makes these agreements unenforceable in sexual harassment and assault cases. (This law applies only to NDAs signed before the harassment occurred).

Gretchen Carlson and Julie Roginsky, former Fox News employees and co-founders of Lift Our Voices, an advocacy group working to end forced arbitration and NDAs, helped garner support for the Speak Out Act. It’s a personal issue for Carlson and Roginsky, who were forced to sign NDAs when they joined Fox News and, again, as part of sexual harassment settlements with the company.

“This is an incredibly important piece of legislation, not just because of what it does, but also because it sends a signal for the first time that the United States Congress believes that NDAs have gone too far,” Roginsky says.

Carlson believes that stopping these NDAs not only gives victims a voice but may also help curb sexual harassment at work. If predators know you have a voice, they may think twice before acting, she explains.

In addition, Carlson says NDAs keep women from talking to one another, so they don’t realize when harassment is widespread. “The point of NDAs is to cover up behavior, but it’s also to stop the women from being able to coalesce together to realize that they’re not the only one…you don’t know that maybe ten other people at your same firm are being treated in the same way.”

Indeed when news broke of Carlson’s harassment accusations against Fox News head Roger Ailes, Roginsky says she thought, “So, it wasn’t just me.” The Speak Out Act will allow women and all victims of sexual misconduct at work to end the isolation and speak with their coworkers about their experiences.

Julia Duncan, a senior director at the American Association for Justice, an advocacy group of trial lawyers, says this bill will help victims to keep working in a safe environment. “Most workers don’t have the platform or the resources to force a public conversation within their companies. Most workers just want the abuse to stop, and they want to keep working,” she explains.

Despite the widespread bipartisan support for the bill, not everyone favors ending the silencing of victims. The bill had unanimous support in the Senate, but most Republican lawmakers in the House (109) voted against the bill. Uber reportedly lobbied for changes to the bill, and an organization called the Independent Women’s Forum also voiced opposition.

“I certainly can tell you that the bill that came out of the House Judiciary Committee came out with significant changes. And that would not have happened but for opposition to the bill from powerful entities,” said Duncan. She adds that most organizations prefer not to disclose their opposition, given that silencing harassment and assault victims is not currently a popular stance.

Despite their success with the Speak Out Act and a bill passed earlier this year eliminating forced arbitration in sexual misconduct cases, Carlson and Roginsky have no intention of stopping their fight. They want to eliminate the use of NDAs and forced arbitration in all toxic workplace cases, including all types of discrimination and retaliation. And they want all NDAs invalidated, including those not covered by the Speak Out Act, which are signed after a settlement.

They plan to turn their attention to state laws. At least 17 states have already imposed some restrictions on NDAs. “We are introducing much more broad legislation in the state of New York in January that will mirror what New Jersey, California, and Washington state have done in eradicating all NDAs for all toxic workplace issues. So, you cannot use an NDA at work other than for proprietary information in any of those states. That’s what we hope to pass in New York as well,” Carlson says.

An additional benefit of introducing state legislation is a potential domino effect. Prominent companies headquartered in states with NDA bans, including Microsoft and Salesforce, have extended prohibitions on NDAs in cases of workplace harassment and discrimination to all their United States employees.

One argument against total bans on NDAs is that they will reduce the likelihood of settlements and decrease the dollar amount provided to plaintiffs. So, Carlson and Roginsky are quantitatively comparing harassment cases in New Jersey before and after the state NDA law was passed. Preliminary evidence indicates the law had no impact on the ability to settle or on the dollar amount received by plaintiffs.

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