II 

Calendar No. 493 

117TH CONGRESS 

2D SESSION S. 4524 

To limit the judicial enforceability of predispute nondisclosure and nondisparagement contract clauses relating to disputes involving sexual assault 

and sexual harassment. 

IN THE SENATE OF THE UNITED STATES 

JULY 13, 2022 

Mrs. GILLIBRAND (for herself, Mrs. BLACKBURN, Ms. HIRONO, Mr. GRAHAM, 

Mr. PORTMAN, Mr. BLUMENTHAL, Mr. DURBIN, Ms. KLOBUCHAR, Mrs. 

FEINSTEIN, Mr. OSSOFF, Mr. BOOKER, Mr. CORNYN, Mr. GRASSLEY, 

Mr. PADILLA, and Mr. COONS) introduced the following bill; which was 

read twice and referred to the Committee on the Judiciary 

SEPTEMBER 20, 2022 

Reported by Mr. DURBIN, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

To limit the judicial enforceability of predispute nondisclosure and nondisparagement contract clauses relating to 

disputes involving sexual assault and sexual harassment. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Speak Out Act’’. 


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1 SEC. 2. FINDINGS. 

2 Congress finds the following: 

3 (1) Sexual harassment and assault remain per4 vasive in the workplace and throughout civic society, 

5 affecting millions of Americans. 

6 (2) Eighty-one percent of women and 43 per7 cent of men have experienced some form of sexual 

8 harassment or assault throughout their lifetime. 

9 (3) One in 3 women has faced sexual harass10 ment in the workplace during her career, and an es11 timated 87 to 94 percent of those who experience 

12 sexual harassment never file a formal complaint. 

13 (4) Sexual harassment in the workplace forces 

14 many women to leave their occupation or industry, 

15 or pass up opportunities for advancement. 

16 (5) In order to combat sexual harassment and 

17 assault, it is essential that victims and survivors 

18 have the freedom to report and publicly disclose 

19 their abuse. 

20 (6) Nondisclosure and nondisparagement provi21 sions in agreements between employers and current, 

22 former, and prospective employees, and independent 

23 contractors, and between providers of goods and 

24 services and consumers, can perpetuate illegal con25 duct by silencing those who are survivors of illegal 

26 sexual harassment and assault or illegal retaliation, 


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1 or have knowledge of such conduct, while shielding 

2 perpetrators and enabling them to continue their 

3 abuse. 

4 (7) Prohibiting predispute nondisclosure and 

5 nondisparagement clauses will empower survivors to 

6 come forward, hold perpetrators accountable for 

7 abuse, improve transparency around illegal conduct, 

8 enable the pursuit of justice, and make workplaces 

9 safer and more productive for everyone. 

10 SEC. 3. DEFINITIONS. 

11 In this Act: 

12 (1) PREDISPUTE NONDISCLOSURE CLAUSE.— 

13 The term ‘‘predispute nondisclosure clause’’ means a 

14 provision in a contract or agreement agreed to be15 fore a lawsuit is filed under Federal, State, or Tribal 

16 law that requires the parties to the contract or 

17 agreement not to disclose or discuss conduct, the ex18 istence of a settlement involving conduct, or infor19 mation covered by the terms and conditions of the 

20 contract or agreement. 

21 (2) PREDISPUTE NONDISPARAGEMENT

22 CLAUSE.—The term ‘‘predispute nondisparagement 

23 clause’’ means a provision in a contract or agree24 ment that requires 1 or more parties to the contract 

25 or agreement not to make a negative statement 


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1 about another party that relates to the contract, 

2 agreement, claim, or case. 

3 (3) SEXUAL ASSAULT DISPUTE.—The term 

4 ‘‘sexual assault dispute’’ means a dispute involving 

5 a nonconsensual sexual act or sexual contact, as 

6 such terms are defined in section 2246 of title 18, 

7 United States Code, or similar applicable Tribal or 

8 State law, including when the victim lacks capacity 

9 to consent. 

10 (4) SEXUAL HARASSMENT DISPUTE.—The term 

11 ‘‘sexual harassment dispute’’ means a dispute relat12 ing to conduct that is alleged to constitute sexual 

13 harassment under applicable Federal, Tribal, or 

14 State law. 

15 SEC. 4. LIMITATION ON JUDICIAL ENFORCEABILITY OF 

16 PREDISPUTE NONDISCLOSURE AND NON17 DISPARAGEMENT CONTRACT CLAUSES RE18 LATING TO SEXUAL ASSAULT DISPUTES AND 

19 SEXUAL HARASSMENT DISPUTES. 

20 (a) IN GENERAL.—With respect to a sexual assault 

21 dispute or sexual harassment dispute, no predispute non22 disclosure clause or predispute nondisparagement clause 

23 shall be judicially enforceable in instances in which con24 duct is alleged to have violated Federal, Tribal, or State 

25 law. 


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1 (b) CONTINUED APPLICABILITY OF STATE LAW.— 

2 This Act shall not be construed to supersede a provision 

3 of State law that establishes, implements, or continues in 

4 effect a requirement or prohibition except to the extent 

5 that such requirement or prohibition prevents the applica6 tion of this Act. 

7 (c) CONTINUED APPLICABILITY OF FEDERAL, 

8 STATE, AND TRIBAL LAW.—This Act shall not be con9 strued to supersede a provision of Federal, State, or Trib10 al law that governs the use of pseudonyms in the filing 

11 of claims involving sexual assault or sexual harassment 

12 disputes. 

13 (d) PROTECTION OF TRADE SECRETS AND PROPRI14 ETARY INFORMATION.—Nothing in this Act shall prohibit 

15 an employer and an employee from protecting trade se16 crets or proprietary information. 

17 SEC. 5. APPLICABILITY. 

18 This Act shall apply with respect to a claim that is 

19 filed under Federal, State, or Tribal law on or after the 

20 date of enactment of this Act. 

21 SECTION 1. SHORT TITLE. 

22 This Act may be cited as the ‘‘Speak Out Act’’. 

23 SEC. 2. FINDINGS. 

24 Congress finds the following: 


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1 (1) Sexual harassment and assault remain per2 vasive in the workplace and throughout civic society, 

3 affecting millions of Americans. 

4 (2) Eighty-one percent of women and 43 percent 

5 of men have experienced some form of sexual harass6 ment or assault throughout their lifetime. 

7 (3) One in 3 women has faced sexual harassment 

8 in the workplace during her career, and an estimated 

9 87 to 94 percent of those who experience sexual har10 assment never file a formal complaint. 

11 (4) Sexual harassment in the workplace forces 

12 many women to leave their occupation or industry, or 

13 pass up opportunities for advancement. 

14 (5) In order to combat sexual harassment and 

15 assault, it is essential that victims and survivors have 

16 the freedom to report and publicly disclose their 

17 abuse. 

18 (6) Nondisclosure and nondisparagement provi19 sions in agreements between employers and current, 

20 former, and prospective employees, and independent 

21 contractors, and between providers of goods and serv22 ices and consumers, can perpetuate illegal conduct by 

23 silencing those who are survivors of illegal sexual har24 assment and assault or illegal retaliation, or have 


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1 knowledge of such conduct, while shielding perpetra2 tors and enabling them to continue their abuse. 

3 (7) Prohibiting nondisclosure and nondisparage4 ment clauses will empower survivors to come forward, 

5 hold perpetrators accountable for abuse, improve 

6 transparency around illegal conduct, enable the pur7 suit of justice, and make workplaces safer and more 

8 productive for everyone. 

9 SEC. 3. DEFINITIONS. 

10 In this Act: 

11 (1) NONDISCLOSURE CLAUSE.—The term ‘‘non12 disclosure clause’’ means a provision in a contract or 

13 agreement that requires the parties to the contract or 

14 agreement not to disclose or discuss conduct, the exist15 ence of a settlement involving conduct, or information 

16 covered by the terms and conditions of the contract or 

17 agreement. 

18 (2) NONDISPARAGEMENT CLAUSE.—The term 

19 ‘‘nondisparagement clause’’ means a provision in a 

20 contract or agreement that requires 1 or more parties 

21 to the contract or agreement not to make a negative 

22 statement about another party that relates to the con23 tract, agreement, claim, or case. 

24 (3) SEXUAL ASSAULT DISPUTE.—The term ‘‘sex25 ual assault dispute’’ means a dispute involving a 


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1 nonconsensual sexual act or sexual contact, as such 

2 terms are defined in section 2246 of title 18, United 

3 States Code, or similar applicable Tribal or State 

4 law, including when the victim lacks capacity to con5 sent. 

6 (4) SEXUAL HARASSMENT DISPUTE.—The term 

7 ‘‘sexual harassment dispute’’ means a dispute relating 

8 to conduct that is alleged to constitute sexual harass9 ment under applicable Federal, Tribal, or State law. 

10 SEC. 4. LIMITATION ON JUDICIAL ENFORCEABILITY OF 

11 NONDISCLOSURE AND NONDISPARAGEMENT 

12 CONTRACT CLAUSES RELATING TO SEXUAL 

13 ASSAULT DISPUTES AND SEXUAL HARASS14 MENT DISPUTES. 

15 (a) IN GENERAL.—With respect to a sexual assault 

16 dispute or sexual harassment dispute, no nondisclosure 

17 clause or nondisparagement clause agreed to before the dis18 pute arises shall be judicially enforceable in instances in 

19 which conduct is alleged to have violated Federal, Tribal, 

20 or State law. 

21 (b) CONTINUED APPLICABILITY OF STATE LAW.— 

22 Nothing in this Act shall prohibit a State or locality from 

23 enforcing a provision of State law governing nondisclosure 

24 or nondisparagement clauses that is at least as protective 


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1 of the right of an individual to speak freely, as provided 

2 by this Act. 

3 (c) CONTINUED APPLICABILITY OF FEDERAL, STATE, 

4 AND TRIBAL LAW.—This Act shall not be construed to su5 persede a provision of Federal, State, or Tribal Law that 

6 governs the use of pseudonyms in the filing of claims involv7 ing sexual assault or sexual harassment disputes. 

8 (d) PROTECTION OF TRADE SECRETS AND PROPRI9 ETARY INFORMATION.—Nothing in this Act shall prohibit 

10 an employer and an employee from protecting trade secrets 

11 or proprietary information. 

12 SEC. 5. APPLICABILITY. 

13 This Act shall apply with respect to a claim that is 

14 filed under Federal, State, or Tribal law on or after the 

15 date of enactment of this Act. 


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Calendar No. 493 

117TH CONGRESS 

2D SESSION S. 4524 

A BILL 

To limit the judicial enforceability of predispute 

sault and sexual harassment. clauses relating to disputes involving sexual asnondisclosure and nondisparagement contract 

SEPTEMBER 20, 2022 

Reported with an amendment 


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