Nov 16, 2022 - Economy

Congress is about to curb the use of sexual harassment NDAs

Illustration of a person holding the US Capitol building as a megaphone with abstract shapes emerging.

Illustration: Shoshana Gordon/Axios

A bill limiting the use of nondisclosure agreements to silence victims of workplace sexual harassment and assault appears poised to become law in the U.S. The Speak Out Act already passed the Senate unanimously in September and is likely headed for a House vote Wednesday.

Why it matters: If it passes, it's a win for victims of mistreatment — and not only for those who want to speak publicly but for their colleagues who might be unaware that others are facing harassment or assault.

  • It's also a victory for #MeToo advocates, led by former Fox News hosts Gretchen Carlson and Julie Roginsky who advocated for the bill at a time of heightened bipartisan conflict during a lame-duck session of Congress.
  • "[NDAs] not only silence you, but they make you feel like you're alone. Like you're crazy. Like maybe you're making it up," said Carlson, who is still subject to an NDA with Fox. "Because you feel so isolated."

Zoom out: NDAs first drew wide public attention after some victims of Hollywood producer Harvey Weinstein violated their agreements to go public with allegations of harassment and assault — starting a wave of #MeToo allegations.

  • Once thought of as the province of highest-level executives, they've become more common in recent years. Data is hard to come by — these agreements are secret, after all — but one paper last year estimated that 26% of employees in the U.S. are covered by NDAs, many as part of their employment agreements.

The bill only applies to those agreements signed before a dispute arises  the kind of document you might agree to on your first day of work. It also doesn't apply to other kinds of complaints — wage theft, or age or race discrimination, for example.

  • And, the bill doesn't make clear what counts as a "dispute." Some would argue that means a lawsuit, while to others it may just mean a worker has taken a complaint to HR.
  • That will be something courts will have to navigate, as Bloomberg Law noted.

Carlson acknowledged these limitations. "It's a start for us," she told Axios. "But that's what we could get done right now in this Congress."

  • This new law would not prohibit the kind of NDA that Carlson and Roginsky both had to sign after they settled litigation with their former employer.
  • Companies regularly require former employees to sign these silencing agreements as a condition of settlement.

What they're saying: The White House issued a statement supporting the bill on Monday.

  • "Workers should not be silenced in the face of workplace sexual harassment and assault, or face retaliation for coming forward to report such abuse," the administration said. "Transparency is the best way to hold workers accountable."
  • The House bill is cosponsored by Rep. Lois Frankel (D-Fla.), Cheri Bustos (D-Ill.), and Ken Buck (R-Colo.).
  • Flashback: This is the second # MeToo-related bill that Carlson has shepherded through Congress. The first, which prevents companies from forcing sexual harassment cases into private arbitration, passed earlier this year.

How it happened: The genesis of the latest legislation started the day the last bill passed back in February, Carlson told Axios.

  • As the Senate was voting, a Republican Senator was overheard saying he'd vote for similar legislation covering NDAs. Word got back to Bustos, who immediately called Frankel, who had been trying to gain traction for a similar kind of bill.
  • "Immediately we all went to work on it," Carlson said.
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