Bills
| 3.23.22

Limiting the Enforceability of NDAs for Gov’t Employees Who Commit Sexual Harassment (S. 1314)

Do you support or oppose this bill?

What is S. 1314?

(Updated July 24, 2019)

This bill — the Stop Silencing Victims Act — would discourage government employees who are accused of sexual harassment from repeat offenses by limiting the enforceability of NDAs between public sector employers and their employees. Under this bill, NDA enforcement in such cases would be limited and personal information would remain confidential unless the victim chooses to make the information public.

This bill would preserve a victim’s ability to enter into an NDA with their abuser (which many victims choose to do), but ensure they’re not bound to silence — and cannot be retaliated against — if they decide to come forward in future.

Argument in favor

NDAs in cases of sexual harassment by government employees prevent potential employers and coworkers from knowing if someone is a predator while silencing victims. This puts people in danger and allows perpetrators to continue working undetected.

Argument opposed

NDAs serve to protect both victims and perpetrators. While it’s unfortunate that they shield identifying information about perpetrators from the public view, they also keep victims’ information confidential — which they often want.

Impact

Government employees; government employees who are victims of sexual harassment; government employees who are perpetrators of sexual harassment; NDAs for government employees; and enforcement of NDAs for government employees.

Cost of S. 1314

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sen. John Kennedy (R-LA) introduced this bill to protect victims of government workplace sexual harassment by limiting offenders’ ability to hide behind nondisclosure agreements (NDAs):

“The federal government should set the highest standard of policies that protect victims of workplace sexual harassment. It is unacceptable that a government employee who sexually harasses a co-worker can use a nondisclosure agreement as a get out-of-jail-free card.  This legislation prioritizes the rights of the victims and ensures offenders in the public sector cannot legally be protected by nondisclosure agreements.”

In an op-ed in The Advocate, Sen. Kennedy added that NDAs create “a country of creepy old men”:

“I have no doubt that many sexual harassment victims agree to a nondisclosure agreement because they have little choice. They sign on the dotted line because they need money to restart their lives after fleeing a hostile work environment. They’re victimized yet again by being silenced into submission. Meanwhile, the vermin who harassed them are free to prey on someone else because there are only muffled whispers about what happened. Nondisclosure agreements create a country of creepy old men. They protect sexual predators. It’s time to banish them from the government workplace.”

In another op-ed in the Minden Press-Herald, Sen. Kennedy contended that NDAs create a dangerous environment that allows predators to find future victims:

“Nondisclosure agreements create a dangerous environment in which nasty allegations are hidden from the public.  They clear the path for predators to find future victims. In the era of the #metoo movement, that’s unacceptable.  We’re discovering that sexual harassment is more pervasive than we ever thought.”

Rape, Abuse and Incest National Network (RAINN) endorses this bill. Its president, Scott Berkowitz, says:

“We’ve seen how mandatory non-disclosure agreements can shield serial sexual harassers and hide important information from the public. We’re grateful to Sen. Kennedy for finding a way to bring this misconduct by government employees, and the millions it costs taxpayers, to light — without silencing victims.”

In a 2017 article in TIME, attorney and advocate Areva Martin points out that NDAs can be desired by victims. She writes, “The impact of NDAs and secret settlements is complicated — and in many ways, ultimately benefits victims,” and adds that many victims in cases she’s represented have been grateful for confidentiality agreements. Martin adds:

“There are very real reasons why victims might prefer to keep their cases confidential. There’s the fear of being retaliated against or ostracized by their employers, potential future employers and even entire industries. There’s concern for how their friends and family might treat them differently, or might themselves suffer from unwanted attention. There’s the completely understandable aversion to undergoing a humiliating and demoralizing public trial. The cold reality is that defendants come after victims hard, smearing their reputations by casting them in whatever negative light they can, often accusing them of promiscuity, gold-digging and flat-out lying. Private settlements protect victims from all the painful ugliness that comes with litigation in the public eye.”

This bill has one cosponsor, Sen. Kyrsten Sinema (D-AZ).


Of Note: In an op-ed in The Advocate, Sen. Kennedy notes that NDAs were designed to protect trade secrets, but are now being used to “protect people who send dirty text messages, grope their employees, place threatening phone calls and tie their workers’ job security to sexual favors.”

Upon introducing this bill, Sen. Kennedy cited the case of Louisiana Governor John Bel Edwards’ deputy chief of staff, Johnny Anderson, who resigned amid allegations that he groped an employee during a job interview, asked her to send him photos of herself naked and forced her to perform oral sex on him.  A settlement agreement prohibited the parties involved, including the victim, from making “disparaging remarks” about one another. However, despite the settlement agreement, the victim spoke up anyway — and Anderson’s lawyer publicly speculated on whether she might be sued. Additionally, it eventually came out that Anderson had been accused of sexual harassment in the past, and Gov. Edwards — who knew about the allegations but believed Anderson’s claim that they were untrue — didn’t warn the women on his staff about the past allegations. To Kennedy, this amounted to treating the women on Edwards’ staff “like lambs led to the slaughter.”

In 2017, Vox reported that confidentiality clauses which prevent an employee or ex-employee from speaking about sexual harassment and other workplace misconduct is "generally considered to violate federal labor law, though lots of employers use them anyway.” In 2002, the National Labor Relations Board ruled that “a confidentiality rule prohibiting employees from discussing their sexual harassment complaints among themselves” constitutes an unfair labor practice in violation of the Wagner Act, which prohibits employers from restraining employees in the exercise of the right to engage in “concerted activities” for the purpose of “mutual aid or protection.”


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / Bill Oxford)