Key Points

• The new law prohibits judicial enforcement of confidentiality and non-disparagement provisions with respect to sexual harassment and sexual assault disputes.
• The law covers provisions entered into before a dispute arises, not provisions in agreements settling such disputes.
• The law increases pressure on firms to root out harassment in the workplace.

Discussion

Last week, President Biden signed into law the Speak Out Act (SOA or the “Act”), prohibiting judicial enforcement of contractual non-disparagement and confidentiality provisions with respect to claims of sexual harassment or sexual assault. The SOA applies to any contractual provision entered into before a sexual harassment or sexual assault dispute arises, including clauses typically found in firms’ offer letters, employment agreements and confidentiality agreements. The Act has immediate effect, including with respect to agreements entered into prior to the law’s effective date. The SOA does not apply to settlement agreements or other agreements entered into after a dispute has arisen.

The SOA is the latest legislative outgrowth of the #MeToo movement. The Act’s premise is that non-disclosure and confidentiality clauses “can perpetuate illegal conduct by silencing” victims or witnesses of sexual harassment and sexual assault “while shielding perpetrators and enabling them to continue” their unlawful ways.¹This same tenet underlies several other #MeToo-inspired statutes, including a federal law...

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