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House Panel Advances Bill Limiting #MeToo Nondisclosure Pacts

July 13, 2022, 5:28 PM

A House committee advanced a bill that would void nondisclosure agreements for workers reporting allegations of sexual harassment and sexual assault, less than six months after similar legislation limiting arbitration pacts was signed into law.

The US House Judiciary Committee voted 22-13 to advance the measure (H.R. 8227), also known as the SPEAK Out Act. It’s been introduced with Republican support in both the upper and lower chambers of Congress—a rare feat among exceedingly partisan lawmakers. The Senate companion bill was introduced today, with the support of Republican Sens. Lindsey Graham (S.C.) and Marsha Blackburn (Tenn.). The House version has three Republican co-sponsors: Reps. Ken Buck (Colo.), Morgan Griffith (Va.), and Burgess Owens (Utah).

The legislation specifically covers instances when the nondisclosure agreements, also known as “gag orders,” are signed before misconduct takes place. Such agreements are sometimes included in employment contracts, which workers must sign before beginning a job.

Former Fox News anchor Gretchen Carlson is backing the SPEAK Out Act, riding the coattails of her previous success lobbying to ban the enforcement of mandatory arbitration agreements for workplace sexual harassment or assault claims. President Joe Biden signed that similar bill into law in March.

“It’s another step in our critical work to eliminate the culture of silence,” said Rep. David Cicilline (D-R.I.).

Markup Squabbles

Republican Rep. Matt Gaetz (Fla.) huddled with the bill’s co-sponsors—Reps. Lois Frankel (D-Fla.) and Cheri Bustos (D-Ill.)—as well as committee Republicans and Democrats throughout the markup, before raising concerns about the legislation.

Gaetz said that if someone is being silenced, “they’re being silenced by the virtue of their own decision” not because a powerful company or person is pushing them into mandatory arbitration.

He said the bill may create a “bizarre” incentive for people to feign allegations of sexual harassment to evade the constraints of a nondisclosure agreement for other purposes.

“I think you view this as creating havoc, and I would argue that that would not be the case,” said Rep. Sheila Jackson Lee (D-Texas). “The issue is the pain of silence, and what happens to someone who is victimized and has to be silenced.”

Gaetz pointed out that he supported the previous legislation limiting mandatory arbitration agreements. He voted against the SPEAK Out Act on nondisclosure agreement restrictions.

Other committee Republicans, including Reps. Dan Bishop (N.C.) and Louie Gohmert (Texas), also expressed concerns about the scope and purpose of the bill, and how it would work with state laws and the enforceability of the agreements.

Hawaii Tuesday expanded its ban on workplace nondisclosure agreements to cover settlements and other contracts that would prevent employees from talking about claims of sexual harassment or sexual assault. It is one of 15 states that restrict employers’ use of nondisclosure agreements to keep quiet allegations of workplace sexual misconduct.

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editor responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com