President Biden Signs the Speak Out Act Which Impacts Non-Disclosure and Non-Disparagement Clauses in Sexual Assault and Harassment Claims

Ashley Graves, Law Clerk

            On December 7, 2022, President Joe Biden signed the Speak Out Act into law, prohibiting the judicial enforcement of pre-dispute non-disclosure and non-disparagement clauses relating to sexual assault and sexual harassment claims.[1]    

The Act states that “with respect to a sexual assault dispute or sexual harassment dispute, no non-disclosure clause or non-disparagement clause agreed to before the dispute arises shall be judicially enforceable in instances in which the conduct is alleged to have violated Federal, Tribal, or State law.”  The Act defines a non-disclosure clause as “a provision[] in a contract or agreement that requires the parties to the contract or agreement not to disclose or discuss conduct, the existence of a settlement involving conduct, or information covered by the terms and conditions of the contract or agreement.”  A non-disparagement clause means “a provision in a contract or agreement that requires [one] or more parties to the contract or agreement not to make a negative statement about another party that relates to the contract, agreement, claim, or case.”  State or local laws that are “at least as protective of the right of an individual to speak freely, as provided by this Act” remain enforceable.

Of note, the Act does not apply to non-disclosure or non-disparagement agreements or clauses agreed to after a sexual assault or harassment dispute has arisen, meaning that under Federal law, parties to a settlement over disputed claims of sexual assault or harassment may still agree to non-disclosure or non-disparagement provisions relating to the dispute if they so choose.  The Act does not define the term “dispute” and, therefore, a dispute under the Act could potentially be as informal as an internal complaint of sexual assault or harassment within a business, as opposed to a lawsuit or an administrative charge regarding the same. 

 Key Takeaways

The Act is not retroactive, and only applies to claims of sexual assault or harassment filed on or after December 7, 2022.  Nonetheless, employers should endeavor to review their onboarding policies, agreements, or employment contracts and update them to the extent that they contain language that could run afoul of the Speak Out Act’s prohibitions against pre-dispute non-disclosure and non-disparagement agreements in the sexual assault and harassment context.  Further, while the Speak Out Act applies nationwide, employers should check their respective state’s laws for similar prohibitions, as certain states have passed similar laws (including California, Illinois, and Washington, for example) that may have broader restrictions than the Act.   Last, the Speak Out Act should be read and applied in conjunction with the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act[2] (also signed into law by President Biden), which limits the use of pre-dispute arbitration agreements to resolve sexual assault and sexual harassment claims.

[1]See https://www.congress.gov/bill/117th-congress/senate-bill/4524/text.

[2]See https://www.congress.gov/bill/117th-congress/house-bill/4445/text.