Ahead of the close of the 117th U.S. Congress, the House of Representatives, with a vote of 315 – 109, quietly passed the Speak Out Act (“The Act”). President Biden signed the bill a few weeks later. Under the new law, nondisclosure and non-disparagement clauses related to allegations of sexual harassment and/or sexual assault that were entered into prior to a dispute are unenforceable. The goal of the Act is to combat sexual harassment and assault in the workplace by ensuring victims feel empowered to come forward. The Act states, “in order to combat sexual harassment and assault, it is essential that victims and survivors have the freedom to report and publicly disclose their abuse.” The Act only applies to contracts that were signed prior to the dispute and does not account for other workplace misconduct, e.g., race and age discrimination.
Previously, the federal government enacted another law addressing similar concerns. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act bans pre-dispute joint-action waivers and arbitration agreements that cover sexual harassment and assault disputes. Under this law, courts will decide whether the claim rises to sexual harassment or assault, rather than relying on arbitrators to make the decision. This approach will be taken regardless of whether an arbitration agreement includes delegation language on the topic.
Employers should review their current employment agreements, handbooks, arbitration agreements, etc. to ensure they are in compliance with the Act. The Act does not eliminate an employer’s ability to implement confidentiality provisions to protect trade secrets or proprietary information. These regulations are only addressing sexual harassment and assault.
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