[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4524 Reported in Senate (RS)]
<DOC>
Calendar No. 493
117th CONGRESS
2d Session
S. 4524
To limit the judicial enforceability of predispute nondisclosure and
nondisparagement contract clauses relating to disputes involving sexual
assault and sexual harassment.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 13, 2022
Mrs. Gillibrand (for herself, Mrs. Blackburn, Ms. Hirono, Mr. Graham,
Mr. Portman, Mr. Blumenthal, Mr. Durbin, Ms. Klobuchar, Mrs. Feinstein,
Mr. Ossoff, Mr. Booker, Mr. Cornyn, Mr. Grassley, Mr. Padilla, and Mr.
Coons) introduced the following bill; which was read twice and referred
to the Committee on the Judiciary
September 20, 2022
Reported by Mr. Durbin, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To limit the judicial enforceability of predispute nondisclosure and
nondisparagement contract clauses relating to disputes involving sexual
assault and sexual harassment.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Speak Out Act''.</DELETED>
<DELETED>SEC. 2. FINDINGS.</DELETED>
<DELETED> Congress finds the following:</DELETED>
<DELETED> (1) Sexual harassment and assault remain pervasive
in the workplace and throughout civic society, affecting
millions of Americans.</DELETED>
<DELETED> (2) Eighty-one percent of women and 43 percent of
men have experienced some form of sexual harassment or assault
throughout their lifetime.</DELETED>
<DELETED> (3) One in 3 women has faced sexual harassment in
the workplace during her career, and an estimated 87 to 94
percent of those who experience sexual harassment never file a
formal complaint.</DELETED>
<DELETED> (4) Sexual harassment in the workplace forces many
women to leave their occupation or industry, or pass up
opportunities for advancement.</DELETED>
<DELETED> (5) In order to combat sexual harassment and
assault, it is essential that victims and survivors have the
freedom to report and publicly disclose their abuse.</DELETED>
<DELETED> (6) Nondisclosure and nondisparagement provisions
in agreements between employers and current, former, and
prospective employees, and independent contractors, and between
providers of goods and services and consumers, can perpetuate
illegal conduct by silencing those who are survivors of illegal
sexual harassment and assault or illegal retaliation, or have
knowledge of such conduct, while shielding perpetrators and
enabling them to continue their abuse.</DELETED>
<DELETED> (7) Prohibiting predispute nondisclosure and
nondisparagement clauses will empower survivors to come
forward, hold perpetrators accountable for abuse, improve
transparency around illegal conduct, enable the pursuit of
justice, and make workplaces safer and more productive for
everyone.</DELETED>
<DELETED>SEC. 3. DEFINITIONS.</DELETED>
<DELETED> In this Act:</DELETED>
<DELETED> (1) Predispute nondisclosure clause.--The term
``predispute nondisclosure clause'' means a provision in a
contract or agreement agreed to before a lawsuit is filed under
Federal, State, or Tribal law that requires the parties to the
contract or agreement not to disclose or discuss conduct, the
existence of a settlement involving conduct, or information
covered by the terms and conditions of the contract or
agreement.</DELETED>
<DELETED> (2) Predispute nondisparagement clause.--The term
``predispute nondisparagement clause'' means a provision in a
contract or agreement that requires 1 or more parties to the
contract or agreement not to make a negative statement about
another party that relates to the contract, agreement, claim,
or case.</DELETED>
<DELETED> (3) Sexual assault dispute.--The term ``sexual
assault dispute'' means a dispute involving a nonconsensual
sexual act or sexual contact, as such terms are defined in
section 2246 of title 18, United States Code, or similar
applicable Tribal or State law, including when the victim lacks
capacity to consent.</DELETED>
<DELETED> (4) Sexual harassment dispute.--The term ``sexual
harassment dispute'' means a dispute relating to conduct that
is alleged to constitute sexual harassment under applicable
Federal, Tribal, or State law.</DELETED>
<DELETED>SEC. 4. LIMITATION ON JUDICIAL ENFORCEABILITY OF PREDISPUTE
NONDISCLOSURE AND NONDISPARAGEMENT CONTRACT CLAUSES
RELATING TO SEXUAL ASSAULT DISPUTES AND SEXUAL HARASSMENT
DISPUTES.</DELETED>
<DELETED> (a) In General.--With respect to a sexual assault dispute
or sexual harassment dispute, no predispute nondisclosure clause or
predispute nondisparagement clause shall be judicially enforceable in
instances in which conduct is alleged to have violated Federal, Tribal,
or State law.</DELETED>
<DELETED> (b) Continued Applicability of State Law.--This Act shall
not be construed to supersede a provision of State law that
establishes, implements, or continues in effect a requirement or
prohibition except to the extent that such requirement or prohibition
prevents the application of this Act.</DELETED>
<DELETED> (c) Continued Applicability of Federal, State, and Tribal
Law.--This Act shall not be construed to supersede a provision of
Federal, State, or Tribal law that governs the use of pseudonyms in the
filing of claims involving sexual assault or sexual harassment
disputes.</DELETED>
<DELETED> (d) Protection of Trade Secrets and Proprietary
Information.--Nothing in this Act shall prohibit an employer and an
employee from protecting trade secrets or proprietary
information.</DELETED>
<DELETED>SEC. 5. APPLICABILITY.</DELETED>
<DELETED> This Act shall apply with respect to a claim that is filed
under Federal, State, or Tribal law on or after the date of enactment
of this Act.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Speak Out Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Sexual harassment and assault remain pervasive in the
workplace and throughout civic society, affecting millions of
Americans.
(2) Eighty-one percent of women and 43 percent of men have
experienced some form of sexual harassment or assault
throughout their lifetime.
(3) One in 3 women has faced sexual harassment in the
workplace during her career, and an estimated 87 to 94 percent
of those who experience sexual harassment never file a formal
complaint.
(4) Sexual harassment in the workplace forces many women to
leave their occupation or industry, or pass up opportunities
for advancement.
(5) In order to combat sexual harassment and assault, it is
essential that victims and survivors have the freedom to report
and publicly disclose their abuse.
(6) Nondisclosure and nondisparagement provisions in
agreements between employers and current, former, and
prospective employees, and independent contractors, and between
providers of goods and services and consumers, can perpetuate
illegal conduct by silencing those who are survivors of illegal
sexual harassment and assault or illegal retaliation, or have
knowledge of such conduct, while shielding perpetrators and
enabling them to continue their abuse.
(7) Prohibiting nondisclosure and nondisparagement clauses
will empower survivors to come forward, hold perpetrators
accountable for abuse, improve transparency around illegal
conduct, enable the pursuit of justice, and make workplaces
safer and more productive for everyone.
SEC. 3. DEFINITIONS.
In this Act:
(1) Nondisclosure clause.--The term ``nondisclosure
clause'' means a provision in a contract or agreement that
requires the parties to the contract or agreement not to
disclose or discuss conduct, the existence of a settlement
involving conduct, or information covered by the terms and
conditions of the contract or agreement.
(2) Nondisparagement clause.--The term ``nondisparagement
clause'' means a provision in a contract or agreement that
requires 1 or more parties to the contract or agreement not to
make a negative statement about another party that relates to
the contract, agreement, claim, or case.
(3) Sexual assault dispute.--The term ``sexual assault
dispute'' means a dispute involving a nonconsensual sexual act
or sexual contact, as such terms are defined in section 2246 of
title 18, United States Code, or similar applicable Tribal or
State law, including when the victim lacks capacity to consent.
(4) Sexual harassment dispute.--The term ``sexual
harassment dispute'' means a dispute relating to conduct that
is alleged to constitute sexual harassment under applicable
Federal, Tribal, or State law.
SEC. 4. LIMITATION ON JUDICIAL ENFORCEABILITY OF NONDISCLOSURE AND
NONDISPARAGEMENT CONTRACT CLAUSES RELATING TO SEXUAL
ASSAULT DISPUTES AND SEXUAL HARASSMENT DISPUTES.
(a) In General.--With respect to a sexual assault dispute or sexual
harassment dispute, no nondisclosure clause or nondisparagement clause
agreed to before the dispute arises shall be judicially enforceable in
instances in which conduct is alleged to have violated Federal, Tribal,
or State law.
(b) Continued Applicability of State Law.--Nothing in this Act
shall prohibit a State or locality from enforcing a provision of State
law governing nondisclosure or nondisparagement clauses that is at
least as protective of the right of an individual to speak freely, as
provided by this Act.
(c) Continued Applicability of Federal, State, and Tribal Law.--
This Act shall not be construed to supersede a provision of Federal,
State, or Tribal Law that governs the use of pseudonyms in the filing
of claims involving sexual assault or sexual harassment disputes.
(d) Protection of Trade Secrets and Proprietary Information.--
Nothing in this Act shall prohibit an employer and an employee from
protecting trade secrets or proprietary information.
SEC. 5. APPLICABILITY.
This Act shall apply with respect to a claim that is filed under
Federal, State, or Tribal law on or after the date of enactment of this
Act.
Calendar No. 493
117th CONGRESS
2d Session
S. 4524
_______________________________________________________________________
A BILL
To limit the judicial enforceability of predispute nondisclosure and
nondisparagement contract clauses relating to disputes involving sexual
assault and sexual harassment.
_______________________________________________________________________
September 20, 2022
Reported with an amendment