CHAPTER 164—SPEAK OUT ACT

§19401. Findings

Congress finds the following:

(1) Sexual harassment and assault remain pervasive in the workplace and throughout civic society, affecting millions of Americans.

(2) Eighty-one percent of women and 43 percent of men have experienced some form of sexual harassment or assault throughout their lifetime.

(3) One in 3 women has faced sexual harassment in the workplace during her career, and an estimated 87 to 94 percent of those who experience sexual harassment never file a formal complaint.

(4) Sexual harassment in the workplace forces many women to leave their occupation or industry, or pass up opportunities for advancement.

(5) In order to combat sexual harassment and assault, it is essential that victims and survivors have the freedom to report and publicly disclose their abuse.

(6) Nondisclosure and nondisparagement provisions in agreements between employers and current, former, and prospective employees, and independent contractors, and between providers of goods and services and consumers, can perpetuate illegal conduct by silencing those who are survivors of illegal sexual harassment and assault or illegal retaliation, or have knowledge of such conduct, while shielding perpetrators and enabling them to continue their abuse.

(7) Prohibiting nondisclosure and nondisparagement clauses will empower survivors to come forward, hold perpetrators accountable for abuse, improve transparency around illegal conduct, enable the pursuit of justice, and make workplaces safer and more productive for everyone.

(Pub. L. 117–224, §2, Dec. 7, 2022, 136 Stat. 2290.)

Statutory Notes and Related Subsidiaries

Short Title

Pub. L. 117–224, §1, Dec. 7, 2022, 136 Stat. 2290, provided that: "This Act [enacting this chapter] may be cited as the 'Speak Out Act'."

§19402. Definitions

In this chapter:

(1) Nondisclosure clause

The term "nondisclosure clause" means a provision in a contract or agreement that requires the parties to the contract or agreement not to disclose or discuss conduct, the existence of a settlement involving conduct, or information covered by the terms and conditions of the contract or agreement.

(2) Nondisparagement clause

The term "nondisparagement clause" means a provision in a contract or agreement that requires 1 or more parties to the contract or agreement not to make a negative statement about another party that relates to the contract, agreement, claim, or case.

(3) Sexual assault dispute

The term "sexual assault dispute" means a dispute involving a nonconsensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18 or similar applicable Tribal or State law, including when the victim lacks capacity to consent.

(4) Sexual harassment dispute

The term "sexual harassment dispute" means a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.

(Pub. L. 117–224, §3, Dec. 7, 2022, 136 Stat. 2290.)

§19403. Limitation on judicial enforceability of nondisclosure and nondisparagement contract clauses relating to sexual assault disputes and sexual harassment disputes

(a) In general

With 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.

(b) Continued applicability of State law

Nothing in this chapter shall prohibit a State or locality from enforcing a provision of State law governing nondisclosure or nondisparagement clauses that is at least as protective of the right of an individual to speak freely, as provided by this chapter.

(c) Continued applicability of Federal, State, and Tribal law

This chapter shall not be construed to supersede a provision of Federal, State, or Tribal Law ¹ that governs the use of pseudonyms in the filing of claims involving sexual assault or sexual harassment disputes.

(d) Protection of trade secrets and proprietary information

Nothing in this chapter shall prohibit an employer and an employee from protecting trade secrets or proprietary information.

(Pub. L. 117–224, §4, Dec. 7, 2022, 136 Stat. 2291.)

¹ So in original. Probably should not be capitalized.

§19404. Applicability

This chapter shall apply with respect to a claim that is filed under Federal, State, or Tribal law on or after December 7, 2022.

(Pub. L. 117–224, §5, Dec. 7, 2022, 136 Stat. 2292.)