ALBANY – A legislative effort to ban non-disclosure agreements statewide will also test Albany’s commitment in upcoming weeks to battling sexual harassment, advocates say.
“The NDAs prevent survivors from speaking publicly about their experiences if they so choose, and often prohibit survivors from warning colleagues about a workplace predator,” Assemblywoman Jessica González-Rojas (D-Queens), who has spoken about her own experiences with sexual violence, said about the bill she is sponsoring in her chamber.
Proposed legislation would eliminate NDAs for legal settlements of discrimination cases in the public and private sectors that bill supporters say make workers choose between money and telling the truth about what happened to them.
“I have been silenced by an NDA prohibiting me from ever disclosing what really happened. I may never get my voice back,” former Fox News host Gretchen Carlson, who famously settled with the network over sexual harassment allegations, said at a Capitol press conference on Monday.
“The bill we’re advocating for today would eliminate NDAs, not just for harassment and assault, but for all toxic workplace issues, including race, gender, sexual identity, age, and disability discrimination. This bill puts the power back in the hands of the survivors.”
Current law allows NDAs for discrimination cases as long as they are the “preference” of an employee, which bill supporters say creates a power imbalance with their former bosses.
And the state Legislature is among the employers that still utilize non-disclosures – a fact that could change if the bill passes both chambers before the scheduled end of the 2023 session on June 8.
“It’s one of those key bills that not only change the law but helps us shift the culture because it allows survivors to start speaking out and start speaking with each other. And we know where all of our legislation comes from is our lived experience,” Erica Vladimer, co-founder of the Sexual Harassment Working Group established by former legislative staffers, said.
Washington, New Jersey, and California have passed similar legislation in recent years after the MeToo movement thrust the issue of workplace harassment into the national conversation.
The New York bill would ban NDAs in legal settlements, but it would not bar employers from requiring workers to sign agreements barring them from divulging “trade secrets, proprietary information or confidential information” that are not tied to anti-discrimination laws, according to the legislative language.
If passed by the state Legislature and signed into law by Gov. Kathy Hochul, the proposal would take effect within 60 days though it would not cover NDAs signed before its enactment.
New York lawmakers passed a package of bills in 2019 aimed at battling workplace discrimination.
This included eliminating the much-criticized standard that behavior must be “severe and pervasive” to qualify as harassment in favor of it being more than “a petty slight or inconvenience,” but state Sen. Andrew Goundardes (D-Brooklyn) said such changes did not go far enough.
“A few years ago, I wrote that New York has an opportunity to dismantle the harassment protection machine, all the laws and norms that serve to protect abusers, and the people enabling them, instead of empowering and protecting survivors, and those supporting them,” Gounardes, who is sponsoring the bill in his chamber, said at the press conference.
“And we’ve made some progress along that way, but this is the big one right here because this is a bribe,” he added about NDAs.
Two members of the Assembly – Juan Ardila (D-Queens) and Pat Burke (D-Buffalo) – have been accused of sexual misconduct in recent months.
Ardila, first elected in 2022, has been accused of forcibly touching two women at a 2015 party while Burke faces a variety of charges of inappropriate behavior, including the claim that he showed staffers a pornographic video of his son having sex with an underage girl.
The Assembly is reportedly investigating the allegations against Burke – who has denied wrongdoing – while Speaker Carl Heastie (D-Bronx) has said the situation with Ardila, who no longer denied the charges, is up to him and his constituents despite widespread calls for the Queens’ representative to step down.
While the Assembly appears unlikely to take any action against either member anytime soon, bill advocates say passing the NDA ban in the remaining weeks of the legislative session gives both chambers an opportunity to demonstrate how seriously they are taking the idea of sexual harassment.
“if the legislature wants to honor what happened to [victims of sexual harassment] and actually move forward, this is a no-brainer piece of legislation,” Julie Roginsky, who co-founded the advocacy group Life Our Voices with Carlson, said.