II Calendar No. 493 117th CONGRESS 2d Session S. 4524 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. Short title This Act may be cited as the Speak Out Act . 2. 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 predispute 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. 3. Definitions In this Act: (1) Predispute nondisclosure clause The term predispute nondisclosure clause means a provision in a contract or agreement agreed to before a lawsuit is filed under Federal, State, or Tribal law 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) Predispute nondisparagement clause The term predispute 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, United States Code, 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. 4. Limitation on judicial enforceability of predispute 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 predispute nondisclosure clause or predispute nondisparagement clause 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 This Act shall not be construed to supersede a provision of State law that establishes, implements, or continues in effect a requirement or prohibition except to the extent that such requirement or prohibition prevents the application of this Act. (c) Continued Applicability of Federal, State, and Tribal Law This Act shall not be construed to supersede a provision of Federal, State, or Tribal law 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 Act shall prohibit an employer and an employee from protecting trade secrets or proprietary information. 5. Applicability This Act shall apply with respect to a claim that is filed under Federal, State, or Tribal law on or after the date of enactment of this Act.

1. Short title This Act may be cited as the Speak Out Act . 2. 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. 3. Definitions In this Act: (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, United States Code, 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. 4. 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 Act 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 Act. (c) Continued Applicability of Federal, State, and Tribal Law This Act shall not be construed to supersede a provision of Federal, State, or Tribal Law 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 Act shall prohibit an employer and an employee from protecting trade secrets or proprietary information. 5. Applicability This Act shall apply with respect to a claim that is filed under Federal, State, or Tribal law on or after the date of enactment of this Act.

September 20, 2022 Reported with an amendment