Employees who have experienced sexual harassment in the workplace can bring claims for relief under New York City employment discrimination laws. These laws may, at times, seem to conflict with non-disclosure agreements (NDAs), which are becoming an increasingly common feature of employment contracts and severance agreements around the country. Several months ago, the news cycle included reports on the use of NDAs to prevent former employees of a former New York City mayor, who was running for president at the time, from talking about discrimination and sexual harassment claims they had brought against his company. Recent changes to state law in New York limit employers’ ability to use NDAs with regard to discrimination claims, including sexual harassment.
Elements of a Sexual Harassment Claim
In order to prevail in a claim for sexual harassment, a plaintiff must prove that the conduct they experienced was “on the basis of sex.” The remaining elements of a sexual harassment claim depend on the type of conduct alleged:
– A claim for hostile work environment requires evidence that the conduct was unwelcome, and that it was either severe or pervasive.
– If a plaintiff is alleging quid pro quo sexual harassment, they must demonstrate that acquiescence to sexual demands were a condition of employment.
If the alleged perpetrator was not in a supervisory or managerial position over the plaintiff, they must also show that the employer knew or should have known about the harassment, but failed to act.
Use of Non-Disclosure Agreements in Employment
Employers often use NDAs in employment contracts and severance agreements to protect trade secrets and other confidential information. NDAs in severance agreements might also bar employees from disparaging the employer after the termination of the employment relationship. These can be legitimate purposes, particularly regarding the protection of proprietary information. When they prevent a former employee from speaking out about sexual harassment, they can be seen as an impediment to justice.
One could argue that NDAs protect former employees in some circumstances. If, for example, a mutual NDA is part of a settlement agreement resolving disputed sexual harassment allegations, it prohibits the employer from disparaging the employee. The employer would not be able to discuss their opinions on the employee’s allegations if a new prospective employer calls for a reference. This is why New York State law still allows employees to request NDAs, as discussed below.
Enforcement of Non-Disclosure Agreements
Enforcing an NDA can be tricky if it reaches the point where a lawsuit becomes necessary, since that would be part of the public record. The expense of defending against a lawsuit by a former employer is often enough to discourage individuals from breaching an NDA.
Limits on Non-Disclosure Agreements Under New York Law
The New York General Obligations Law prohibits employers from requiring NDAs in settlement agreements resolving allegations of sexual harassment, whether the dispute is an informal complaint or a lawsuit. The employee can request the inclusion of an NDA when settling a lawsuit, but they must have at least twenty-one days to consider their request. Any other NDA cannot bar a person from discussing alleged sexual harassment with an attorney, law enforcement, or an employment discrimination agency like the New York State Division of Human Rights.
The New York City sexual harassment attorneys at Phillips & Associates help workers assert claims for unlawful workplace practices under state, federal, and city law. To schedule a free and confidential consultation with a member of our experienced and skilled team, please contact us today online or at (212) 248-7431.