[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