By Sally C. Pipes
That goal is admirable. But as written, the legislation — the Speak Out Act HR8227, which was introduced in both the House and Senate in recent weeks — will force victims to go public, even if they don’t want to.
That’s hardly pro-women. Many victims prefer to settle claims out-of-court to avoid both the costs and inevitable publicity of litigation.
Supporters claim the measure targets pre-dispute non-disclosure and non-disparagement agreements. These agreements are incredibly common when someone begins a new job – more than one in three U.S. workers are bound by such agreements. Supporters of the Speak Out Act applaud the bill for banning the enforcement of such agreements in instances of sexual harassment or assault.
Dig into the details of the Speak Out Act, however, and it becomes clear that the bill is written much more broadly than that.
The legislation defines the term “pre-dispute” as any agreement that is signed before a lawsuit is filed — even if that agreement is reached weeks, months, or years after the incident occurred.
That’s a problem because many out-of-court settlements involve their own non-disclosure agreements. The bill would effectively invalidate these NDAs. Only agreements reached after litigation has commenced — where the claims are publicized in court, complete with lawyers — could have enforceable NDAs.
In other words, the bill would make it virtually impossible for employees to settle sexual harassment or assault claims out of court. That hardly counts as progress — unless you’re a trial lawyer.
For one, lawsuits tend to be an expensive undertaking. Despite significant litigation costs and attorneys’ fees, they don’t always yield justice for the average person.
That’s not to mention the personal costs that litigation can exact on claimants. Many victims of sexual assault or harassment would rather not make their claims public — which a lawsuit requires. More than that, the discovery process in these lawsuits can be stressful — and may reveal embarrassing personal details the claimant would rather keep private.
For all these reasons, many victims of workplace sexual misconduct prefer to leave the courts out of it — and instead reach a private settlement with their employer. Under the Speak Out Act, this sort of approach will no longer be available. Any worker who wishes to resolve their claim for workplace sexual misconduct will need to hire a lawyer, file a lawsuit, and endure the uncertainties, stresses, and costs of litigation.
Add all these costs up, and it’s possible that the Speak Out Act could result in more women remaining silent.
Even if the Speak Out Act weren’t so poorly written, it would remain a troubling instance of congressional overreach. It’s far from clear that lawmakers have the authority to nullify private agreements signed between workers and their employers, even if their intent is to help victims of sexual assault and harassment.
Sexual assault and harassment victims deserve every opportunity to seek justice. But the Speak Out Act doesn’t advance that goal.
Sally C. Pipes is President, CEO, and Thomas W. Smith Fellow in Health Care Policy at the Pacific Research Institute. Her latest book is False Premise, False Promise: The Disastrous Reality of Medicare for All (Encounter 2020). Follow her on Twitter @sallypipes. This piece originally appeared in Newsmax.