New Mexico prohibits nondisclosure agreements in sexual harassment cases

For many years, employers settling workplace sexual harassment claims might insist on some form of a nondisclosure agreement (NDA) prohibiting employees from publicly discussing their claims. Often, the NDAs also included a pledge never to tell the story again nor disparage the employer or those accused of the harassment. Now, the law is changing in New Mexico.

Sexual harassment NDAs outlawed

The New Mexico Legislature has joined an increasing number of states outlawing NDAs in cases where sexual harassment is alleged. The trend appears to be in reaction to the #MeToo movement and several high-profile cases of serial sexual harassers who were at least partially enabled by their victims’ contractual prohibition from disclosing what had happened to them.

Legislators and others believe an employee’s ability to tell her story would serve as a warning to other potential victims and make companies less likely to protect or continue to employ a known harasser. So, going forward, you may not require an employee to agree to refrain from repeating her sexual harassment, discrimination, or retaliation allegations.

The legislature recognized, however, a person alleging sexual harassment may want to maintain her privacy. In those cases, if the employee requests an NDA, it may still be written into the settlement.

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