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NDAs and Confidentiality in Sexual Harassment Cases: What You Can Still Say

For decades, confidentiality clauses were the standard way workplace sexual harassment disappeared from view. That has changed markedly, at both federal and state level, and many people are bound by less than they think.

The Speak Out Act

The federal Speak Out Act, enacted in December 2022, makes pre-dispute non-disclosure and non-disparagement clauses unenforceable in cases involving sexual harassment or sexual assault.

Pre-dispute means signed before the dispute arose. If you signed a broad confidentiality clause when you were hired and were later harassed, that clause generally cannot be used to stop you speaking about it.

What the Act does not do is invalidate every NDA. Post-dispute confidentiality, agreed as part of a settlement after a claim has been raised, remains enforceable.

Forced Arbitration No Longer Applies Automatically

A companion federal law, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, gives you the right to choose court over arbitration for these claims, even if you signed an arbitration agreement. If you were told your only route is private arbitration, that advice may no longer be correct.

New York

New York law restricts confidentiality provisions in settlements of discrimination and harassment claims unless keeping the matter confidential is the complainant’s own preference. The statute builds in a consideration period and a revocation period, and later amendments barred terms requiring a complainant to forfeit consideration or pay liquidated damages for breaching confidentiality.

The effect is to move the choice from the employer to the person who was harmed.

New Jersey

Amendments to the New Jersey Law Against Discrimination render unenforceable, against the employee, any provision that has the purpose or effect of concealing the details of a claim of discrimination, retaliation, or harassment. New Jersey also bars the prospective waiver of substantive rights under the LAD.

Florida

Florida has no state analogue to the New York and New Jersey provisions, so the federal Speak Out Act does the heavy lifting for Florida employees, together with the limits on forced arbitration.

What to Examine Before You Sign

The dollar figure is rarely the only thing that matters. Read closely for:

Scope of confidentiality — does it cover the facts, the amount, or the existence of the agreement itself
Carve-outs — can you still speak to your lawyer, therapist, doctor, spouse, accountant, and to government agencies or law enforcement
Non-disparagement — is it mutual, and does it purport to bar truthful statements
Clawback or liquidated damages — would an alleged breach require you to repay the settlement
No-rehire clauses — do they extend to parents, subsidiaries, and affiliates
References — what exactly will the employer say when contacted
Release scope — which claims are you giving up, and does it capture retaliation
Tax allocation — how the payment is characterised affects what you keep

Confidentiality Is Never Absolute

Even a valid post-dispute NDA cannot prevent you from responding to a subpoena, participating in a government investigation, or reporting criminal conduct to law enforcement. Agreements that appear to say otherwise are frequently overbroad, and a properly negotiated agreement will say so expressly.

Conclusion

Confidentiality can be a legitimate choice, and for many people privacy is exactly what they want. The important thing is that it is genuinely your choice, made with a clear understanding of what you are giving up. Given how much this area has shifted, an agreement drafted from an old template may contain provisions that are no longer enforceable at all.

At John J. Zidziunas & Associates, LLC, our employment lawyers represent workers subjected to sexual harassment across New York, New Jersey, and Florida, and review settlement and severance agreements before they are signed. To discuss your situation confidentially, call us at (212) 516-1868 or contact us here. We represent employees on a contingency fee basis with free consultations.

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