Congress limits use of NDAs in sexual assault cases


FILE – Sun shines on the U.S. Capitol dome in Washington, Aug. 12, 2022. (AP Photo/Patrick Semansky, File)

(NewsNation) — The House of Representatives took action Wednesday to limit the use of nondisclosure or nondisparagement agreements used to silence victims of workplace sexual harassment.

The Speak Out Act passed 315-109 and now heads to President Joe Biden for his signature. The Senate passed the bill unanimously in September.

Sponsored by Sen. Kirsten Gillibrand and Rep. Lois Frankel, the legislation will bar employers from enforcing nondisclosure agreements, or NDAs — often signed on the first day of work — that prevent workers from discussing workplace sexual harassment or assault “disputes” that occur later.

The bill doesn’t define the term “dispute,” which some would argue constitutes a lawsuit while others say means a complaint filed with HR, Axios reported. It’s a line that courts will have to navigate, Bloomberg noted.

Public attention was drawn to the use of NDAs during the #MeToo era, when victims of Hollywood producer Harvey Weinstein broke their agreements and went public with their allegations. The New York Times and The New Yorker reported in 2017 that more than a dozen women accused Weinstein of sexual assault, sexual harassment or rape.

He was convicted of sexual assault and rape in 2020 in New York. The state’s highest court granted him an appeal in August this year.

During debate on the House floor Wednesday, Rep. Cheri Bustos, D-Ill., who co-sponsored the bill, said the bipartisan measure will “dismantle this culture of silence.”

“For way too long, this sinister culture of silence has protected predators and has shamed survivors,” Bustos said. “The only way to dismantle this culture of silence is to let the voices and the stories of the survivors be heard.”

Some lawmakers who opposed the measure, including Rep. Jim Jordan, R-Ohio, argued it undercuts states’ rights to legislate contract law. Democratic Rep. Jerry Nadler rejected that notion and rebutted the idea that courts may already choose not to enforce NDAs.

“This argument overlooks the reality that this scattershot approach to forced NDAs in sexual assault cases leaves survivors uncertain of their ability to tell their own stories without fear of reprisal,” Nadler said. “It continues to allow NDAs to be used as an intimidation tactic by powerful corporations and abusers, or as a coercive requirement for employment or everyday services.”

The bill is a win for former Fox News hosts Gretchen Carlson and Julie Roginsky, who formed the nonprofit Lift Our Voices to advocate for the end of these types of agreements. Both filed lawsuits against the network over sexual harassment claims, and Carlson is still subject to her NDA, Axios reported.

“The only way to end the vicious cycle of abuse is to end the vicious cycle of silence,” Carlson said at a news conference after passage of the bill.

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