#MeToo Victory: Biden Signs Law Limiting NDAs and Protecting the Right to Speak Out About Sexual Abuse

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A one-two punch of new laws empower survivors to speak out and tell their stories: the Speak Out Act, and the Ending Forced Arbitration for Sexual Assault and Harassment Act. Here, Sen. Kirsten Gillibrand (D-N.Y.), Rep. Cheri Bustos (D-Ill.) and former Fox News broadcaster Gretchen Carlson announce the latter on July 14, 2021. Both bills aim to stop sexual abuse and hold abusers accountable. (Drew Angerer / Getty Images)

Since #MeToo went viral five years ago, 16 states have passed laws blocking employers from requiring employees to sign agreements prohibiting them from speaking out about their experiences of sexual harassment and assault on the job. Now, Congress has created a new national standard prohibiting this behavior.

On Dec. 7, President Biden signed the Speak Out Act, limiting the enforceability of non-disclosure agreements and non-disparagement agreements (NDAs) for sexual harassment and sexual assault disputes.

“Going forward, pre-dispute NDA’s will no longer be able to silence survivors of sexual assault or harassment,” said Senator Mazie K. Hirono (D-Hawaii), who led the effort to pass the law, along with Sen. Kirsten Gillibrand (D-N.Y.) and Reps. Lois Frankel (D-Fla.) and Cheri Bustos (D-Ill). (Hear directly from Frankel and Bustos in their joint Ms. op-ed on the victory.)

The Speak Out Act will prohibit the use of pre-dispute NDAs between employers and current, former and prospective employees, as well as independent contractors. The law also prohibits the use of pre-dispute NDAs between businesses and customers.

The act preserves the option for survivors to enter into an NDA as part of a settlement of a dispute if they choose and allows states to enact additional protections beyond the Speak Out Act.

“Forced NDAs punish the survivor and protect the perpetrator who is set free to abuse others again and again,” said a bipartisan group of Congress members after President Biden signed the act.

“With the signing of the Speak Out Act, we will now hold abusers accountable and change the culture of the workplace. Employers who were used to hiding their dirty little secrets will be forced to stop toxic workplaces, sexual harassment and assault before it happens. This should lead to safer and more productive workplaces and civic society for employers, employees and consumers. This is a historic day for labor law and women’s rights in America.”

The #MeToo uprising revealed pervasive sexual harassment and assault in the workplace, in housing and beyond. For years, companies have used NDAs to prevent survivors of sexual harassment and assault from speaking publicly about these incidents.

Employers who were used to hiding their dirty little secrets will be forced to stop toxic workplaces, sexual harassment and assault before it happens.

Non-disclosure clauses appear in the fine print of contracts not only for employment, but also for property leases, nursing homes, insurance, ride-share apps, movers, maintenance services and more, affecting tens of millions of Americans each year. These clauses silence survivors and grant impunity to perpetrators and the companies that harbor them and cover up their abuse.

The new law allows employees and consumers to share their experiences and warn job applicants and customers about companies that tolerate harassment and abuse of women.

“About one-third of the American workforce is required to enter into an NDA as a condition of employment. Many others sign NDAs outside the context of employment,” explained Hirono at a Judiciary Committee hearing in September. “NDAs were once only intended to protect trade secrets and proprietary information, but the broad reach of many NDAs has become weaponized by those in seats of power to cover up sex abuse and sexual misconduct exploiting the often-unequal balance of power between the two parties. These kinds of NDAs have forced people out of their careers and out of the workforce entirely.”

The Senate unanimously passed the Speak Out Act in September and the House passed the bill by a vote of 315-109 in November. Broadcast journalist Gretchen Carlson, who experienced sexual harassment and abuse at Fox News, worked to win Republican support for the legislation. 

“This common-sense law will protect millions of people by ensuring their right to speak out,” said Carlson.

The Speak Out Act follows passage of a similar law last March barring employers and businesses from forcing employees and customers to arbitrate sexual harassment and assault claims.

But some advocates say more needs to be done.

“Survivors’ ability to speak out about sexual abuse will help prevent employers from simply sweeping this scourge under the rug and evading accountability,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center after the Senate’s passage of the bill in November. “But we must go further. Too many individuals who are disproportionately marginalized by harassment are not fully protected by this bill.”

Goss Graves noted that employers can still impose non-disclosure agreements to stop workers from speaking out about other forms of harassment, such as that based on race or disability.

“I’m proud we got this done,” said Hirono. “I will continue working to help ensure all survivors get the protection and support they deserve.”

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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.