House Passes Limits On Sexual Harassment NDAs

A law that would limit employers’ use of non disclosure agreements to keep victims of sexual harassment silent overwhelmingly passed the House on Wednesday and now will head to President Joe Biden for signing.

The legislation is a next step from a law Biden signed earlier this year that ended forced arbitration in such cases. The president is expected to sign the new bill.

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The House voted 315-109 for the Speak Out Act. Former Fox News personalities Gretchen Carlson and Julie Roginsky have championed the legislation.

The bill only applies to instances before a dispute arises, not afterward, and does not cover other workplace misconduct like age and race discrimination. The bill also would not apply to NDAs signed as part of settlements of sexual harassment lawsuits. Instead, the legislation covers the kind of “forced” NDAs that employees face as conditions of employment.

At a Capitol Hill press conference with lawmakers and hosted by Rep. Lois Frankel (D-FL), Carlson said, “When I finally found the courage to sue Roger Ailes and Fox News, it was a really dark day when my team of lawyers said to me you had not case actually. I said, ‘Well, what are you talking about?’ They said because of the silencing mechanisms that you have in your contract.”

She added, “So I had signed that contract and I’m not alone. Millions of other Americans have signed similar contracts. So unbelievably on that day, the choice for me had already been made. And that’s what’s so crazy about these NDAs and forced arbitration is that you are signing on the dotted line before anything has actually ever happened to you yet.” Carlson ended up suing Ailes instead.

Roginsky said that the legislation also will help a witness to sexual harassment and “will make the American workplace safer.”

She said that the next step should be legislation to prohibit NDAs on racial and gender discrimination, as well as age discrimination. “Everything that is subject to discrimination and retaliation should not be bound by secrecy,” she said. Carlson noted that at the state level, Washington, New Jersey and California have already passed bans on NDAs for all types of workplace issues, and they plan to introduce restrictions in New York in January.

Rep. Jerry Nadler (D-NY) also expressed hope that Congress would eventually pass a bill banning forced arbitration for a wide range of workplace issues, after passing a narrower piece of legislation this year.

On the floor of the House, another backer of the legislation, Rep. Ken Buck (R-CO), said, “If you are raped, you may not be muzzled. This legislation gives us a choice. We can protect rapists, predators, perverts in the workplace, or we can voice to victims, survivors and the most vulnerable among us.”

Rep. Jim Jordan (R-OH), though, called the bill “a massive federal overreach” because it regulates contract law that should be handled at the state level.

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