On December 7, 2022, President Biden signed into law the “Speak Out Act” (S.B. 4524), which prohibits the enforcement of pre-dispute non-disclosure and non-disparagement clauses in disputes relating to claims of sexual assault or sexual harassment. Among other things, the Act is intended to combat sexual harassment and assault in the workplace by ensuring that “victims and survivors have the freedom to report and publicly disclose their abuse” so that perpetrators may be held accountable and workplaces may be “safer and more productive for everyone.” S.B. 4524 § 2. The Act applies only to non-disclosure and non-disparagement clauses signed before a dispute arises, meaning that it does not prohibit such provisions in settlement or severance agreements.

In light of Congress’s findings that non-disclosure and non-disparagement provisions “can perpetuate illegal conduct by silencing those who are survivors of illegal sexual harassment and assault or illegal retaliation” and “shielding perpetrators and enabling them to continue their abuse,” the Speak Out Act makes such clauses judicially unenforceable in sexual assault or sexual harassment disputes where the conduct is alleged to have violated federal, state, or tribal law. S.B. 4524 §§ 4(a), 1(6). The Act applies to disputes alleging nonconsensual sexual acts, nonconsensual sexual contact, or sexual harassment. Id. §§ 4(a), 1(3)–(4).

A non-disclosure clause is defined as “a provision in a contract or agreement that requires...

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