S.4524 – Speak Out Act (2021-2022)
In September of 2022, the Senate unanimously passed The Speak Out Act, Senate Bill 4524, and on Wednesday, November 16th, 2022, the House passed that same bill 315 to 109. Although an interesting bill, and perhaps a good start, it has some significant limitations and may not be the ultimate panacea that some sexual assault and harassment victims may be looking for.
The Bill’s primary provision is contained in § 4(a), which sets forth that “[w]ith 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.” The term “sexual assault dispute” is defined in § 3(3) of the Bill as a dispute “involving nonconsensual sexual act or sexual contact,” which terms are defined under 18 U.S.C. §§ 2246(2) and (3), respectively, and “sexual harassment dispute” is defined in § 3(4) of the Bill as a dispute “relating to conduct that is alleged to constitute sexual harassment.”
Although some commenters are heralding this Bill as one of significance, it has serious problems. Most notably, § 4(a) limits the restrictions on the enforceability of nondisclosure and nondisparagement clauses to only those “agreed to before the dispute arises. . . .” Accordingly, if a dispute arises and a victim executes a nondisclosure/nondisparagement agreement in a settlement or severance agreement, under this Bill those agreements would still be enforceable—the only restriction under this Bill would be those agreements, for example, executed concurrently with the beginning of employment prior to the dispute arising. Further, § 5 of this Bill specifically identifies that this Bill is not retroactive and only applies to claims filed after the enactment date of the Act. Any victims who have already filed claims, therefore, cannot claim relief under this Act.
We here at Fazzano & Tomasiewicz applaud any step forward in seeking justice for victims of sexual abuse and assault, and always strive towards protecting those victims. That being said, Congress seems to have not done enough in this instance. This will not protect victims who execute nondisclosure/nondisparagement agreements in a settlement or severance agreement after they have been victimized. Victims in such instances—especially if they are not represented by counsel—often feel that such clauses are unavoidable, or victims feel they have to execute such agreements. Further, this Bill is not retroactive and does not protect past victims. This Bill is a good step forward, but not enough, and all people should be aware of their rights in all circumstances, most notably when signing settlement or severance agreements.