[Congressional Record Volume 168, Number 158 (Thursday, September 29, 2022)]
[Senate]
[Page S6050]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             SPEAK OUT ACT

  Mr. SCHUMER. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar 493, S. 4524.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The senior assistant legislative clerk read as follows:

       A bill (S. 4524) to limit the judicial enforceability of 
     predispute nondisclosure and nondisparagement contract 
     clauses relating to disputes involving sexual assault and 
     sexual harassment.

  There being no objection, the Senate proceeded to consider the bill, 
which had been reported from the Committee on the Judiciary, with an 
amendment to strike all after the enacting clause and insert in lieu 
thereof the following:

     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.

  Mr. SCHUMER. I further ask that the committee-reported substitute 
amendment be agreed to; that the bill, as amended, be considered read a 
third time and passed; and that the motion to reconsider be considered 
made and laid upon the table with no intervening action or debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The committee-reported amendment in the nature of a substitute was 
agreed to.
  The bill (S. 4524), as amended, was ordered to be engrossed for a 
third reading, was read the third time, and passed.

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