Determining whether NDAs are enforceable in sexual harassment cases

Like all good legal questions, the answer to whether a nondisclosure agreement (NDA) is enforceable in sexual harassment cases is “it depends.” An NDA or confidentiality agreement is a signed legal document that restricts one party from sharing certain information with others. In the 1940s, NDAs were originally used in maritime law, and in the 1980s, they were commonly used in the tech industry to protect trade secrets. Since then, NDAs have gradually crept into a wider variety of employment contracts and become normalized in settling disputes about sexual misconduct and other forms of discrimination. In recent years, however, there has been increased concern over their ability to silence victims of sexual harassment and discrimination. This has resulted in a global wave of legislation and case law addressing the issue and changing the landscape of NDA enforceability. Ultimately, NDAs are still enforceable but subject to certain limitations.

Speak Out Act

The federal Speak Out Act signed by President Joe Biden on December 7, 2022, prohibits the enforceability of nondisclosure and nondisparagement clauses concerning sexual misconduct entered into by an employee “before the dispute arises.” The impetus for the law was to prevent the use of NDAs to cover up repeated misconduct (including sexual harassment and/or assault) by high-profile employees, thereby preventing victims from talking about the misconduct publicly.