The contract at issue in Savage v. Township of Neptune was a settlement agreement between the Township of Neptune Police Department (the Department) and a former police sergeant who had alleged, among other things, sex discrimination, sexual harassment, and unlawful retaliation in violation of the NJLAD, the New Jersey Civil Rights Act, and the New Jersey Constitution. The settlement agreement included a non-disparagement clause prohibiting each party from making any statement about the other’s past conduct that would disparage or impugn its reputation. 

Soon after the settlement, the plaintiff gave an interview where she made comments that the Department found disparaging. The plaintiff described some of the details of her claims, but also went further, describing the Department as a “good ol’ boys system” and claiming that the Department “has not changed.” The Department moved to enforce the settlement agreement and sought damages and other relief, and the plaintiff asserted that the non-disparagement clause was unenforceable under the NJLAD. 

The court determined that the non-disparagement clause did not run afoul of the NJLAD (N.J.S.A. 10:5-12.8(a)), which prohibits only non-disclosure and confidentiality provisions, and which is intended to protect a NJLAD plaintiff’s right to describe the details of their claim. The court recognized that there may be some overlap between statements covered by non-disparagement on the one hand, and by a non-disclosure on the other, but noted that the Department was not contesting the plaintiff’s right to discuss the details of her claim. Rather, the Department objected to the plaintiff’s “more general disparaging language . . . that [was] not directly related to the details of her claim but rather related to her impression of defendants’ present and future behavior.”   

Accordingly, the court held that the non-disparagement provision was enforceable under the NJLAD, whose restriction on non-disclosure provisions “was only intended to prevent employers from compelling employees to enter into agreements to conceal the details of their LAD claims.” Though the court held that the plaintiff did not actually violate the non-disparagement, the takeaway here for employers is that they can continue to include such provisions in their settlement agreements, provided that they do not use them to “silence” NJLAD litigants from describing the details of their claims.