Sens. Kamala Harris (D-CA) and Lisa Murkowski (R-AK) introduced a bill on Tuesday that would prohibit certain kinds of nondisclosure agreements (NDAs) that help silence victims of sexual harassment.
This bill would prohibit nondisclosure and nondisparagement clauses on workplace harassment as a condition of employment, change in employment status or contractual relationship, and compensation and benefits. Although employers can still include NDAs in settlement agreements, NDAs will not be “unilaterally required” to be in the agreement, according to BuzzFeed.
“The culture of fear and silence created by perpetrators of sexual harassment in American workplaces must end,” Sen. Harris tweeted.
Nondisclosure agreements have received a lot of attention in the wake of numerous media reports on sexual harassment and sexual assault in various industries. Many of the women who would later go on to accuse Harvey Weinstein of sexual assault and sexual harassment in the media signed non-disclosure agreements, or NDAs. Weinstein’s NDAs actually prevented women from telling the full details of their experience to professionals, which meant they couldn’t see a trauma counselor unless they also signed an NDA. In March, after numerous women shared stories of how they experienced sexual violence and harassment at the hands of Weinstein, often killing their careers, The Weinstein Co. cancelled all NDAs that Weinstein had with the women who accused him.
There are a number of barriers for workplace sexual harassment victims to seek accountability for employers, although there have been small improvements since the wave of news stories on sexual violence and harassment began last year. The Equal Employment Opportunity Commission (EEOC), which enforces laws on harassment and discrimination, is not well funded, which inhibits its ability to investigate and sue employers. However, in March, Congress added $16 million for the EEOC in its spending bill. This was the first budget increase the EEOC had in eight years, according to Money Magazine.
The EEOC is still limited in its enforcement, however. If a harassment victim is still an employee and EEOC is investigating the employer, it can strike down provisions that don’t allow workers to comply with investigations, according to The Atlantic’s analysis of NDAs. But if there is no criminal case and the person no longer works there, the EEOC can’t strike down those clauses.
However, this bill would help EEOC in its enforcement by establishing a confidential tip line for the EEOC to target “employers that continue to allow for systemic harassment at the workplace” and shares information with state-based Fair Employment Practice Agencies. It would be used in addition to the EEOC’s formal complaint system.
In their annual Securities and Exchange Commission filings, public companies would also have to disclose repeat settlements that relate to the same alleged harasser, allowing anyone to investigate further into whether a serial harasser works at said company.
Under the bill, companies would no longer get tax deductions from expenses and attorneys’ fees related to sexual harassment litigation. Plaintiffs’ awards and settlements in sexual harassment cases would be classified as nontaxable income. The bill also address workplace sexual harassment training programs and bystander intervention and develops a public service advertisement campaign to educate workers on sexual harassment.
In the past few months, Congress and state legislatures have introduced a variety of measures, some of which became law, that would address workplace sexual harassment. Last year, Sen. Kirsten Gillibrand (D-NY) proposed a bill that would make changes to the Congressional Accountability Act and make lawmakers liable for paying sexual harassment settlements since lawmakers currently use taxpayer money for these settlements. The bill would also remove requirements for victims to go through mediation. The House passed its version of the legislation but it has stalled in the Senate. Gillibrand tried to force Senate leadership to advance the bill in May by using a procedural maneuver to renew attention on her bill, according to CNN.