On December 7, 2022, President Biden signed into law the Speak Out Act (the “Act”), which prevents courts from enforcing certain non-disclosure and non-disparagement clauses related to claims of sexual assault or harassment. The Act, which was originally sponsored by Senator Kirsten Gillibrand in July, was passed by Congress in November. The text of the Act can be accessed here .

The Act notes that while 81 percent of women have experienced some form of sexual harassment or assault in their lifetime, and at least one-third of women have faced sexual harassment in the workplace, an estimated 87 to 94 percent never file a formal complaint. It further provides that non-disclosure and non-disparagement provisions “perpetuate illegal conduct by silencing those who are survivors” and prohibiting such clauses “will empower survivors to come forward [and] hold perpetrators accountable[.]”

Based on these underlying premises, the Act bars the enforcement of non-disclosure and non-disparagement clauses with respect to a sexual assault or sexual harassment disputes where the alleged conduct violates federal, tribal, or state law. 

Notably, the law only applies to agreements entered into prior to a dispute arising. Practically speaking, such clauses that appear in onboarding documents, such as employment contracts and confidentiality agreements, will be subject to the Act, whereas provisions in post-dispute documents, such as severance or settlement agreements, will remain enforceable. 

The law broadly defines “sexual harassment dispute” to encompass disputes relating to any conduct that constitutes sexual harassment under any federal, tribal, or state law. Likewise, “sexual assault dispute” includes any dispute involving a nonconsensual sexual act or sexual act as defined by federal, state or tribunal law. 

The new law, which is similar to state laws passed in California, New Jersey, New York and Illinois, is effective immediately and comes roughly nine months after President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which we wrote about here  after it was passed by the Senate.  

Employers should immediately review their employment agreements, offer letters, and similar onboarding documents and consider adding carve-out and/or severability language to maintain their enforceability. Moreover, in light of the increasing legislative trend towards protecting employees from sexual harassment, employers should be sure to implement comprehensive anti-harassment policies and annual workplace trainings.