Speak Out Act
Floor Speech
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Mr. NADLER. Madam Speaker, pursuant to House Resolution 1464, I call up the bill (S. 4524) to limit the judicial enforceability of predispute nondisclosure and nondisparagement contract clauses relating to disputes involving sexual assault and sexual harassment, and ask for its immediate consideration in the House.
The Clerk read the title of the bill.
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Mr. NADLER. 4524.
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Mr. NADLER. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, S. 4524, the Speak Out Act, empowers survivors of sexual misconduct by prohibiting the use of nondisclosure and nondisparagement clauses that serve to silence survivors who entered into agreements containing those clauses before a dispute arises.
Often buried in the fine print of contracts of adhesion that workers and consumers sign every day to secure employment, goods, or services, these confidentiality clauses have contributed to the culture of silence in cases involving sexual misconduct. As such, they have routinely enabled sexual predators to evade accountability.
The confidential nature of these clauses makes it extremely difficult to fully diagnose the scope of this problem. Nevertheless, experts estimate that more than one-third of workers in the United States are required to sign a nondisclosure agreement in their employment contracts.
This is particularly concerning because of the rampant nature of sexual abuse in the workplace. An estimated 81 percent of women and 43 percent of men will experience sexual harassment in their lifetimes, and more than half of all women report being subjected to unwanted sexual activity while in the workplace.
But these appalling numbers do not even tell the full story. The Equal Employment Opportunity Commission found that the vast majority of survivors simply never report incidents of sexual harassment or sexual assault.
Today, we will take an important step toward fixing this problem by banning the enforcement of nondisclosure and nondisparagement clauses agreed to before a sexual harassment or sexual assault dispute arises. For the purpose of this bill, a dispute arises when a person chooses to exercise their legal rights by asserting a claim of sexual harassment or sexual assault in some official context, such as by complaining to a government agency or by filing a lawsuit.
This legislation continues Congress' important work to protect the rights of survivors to come forward and hold perpetrators accountable for abuse.
Earlier this year, on a bipartisan basis, we enacted H.R. 4445, which empowered survivors to decide whether they resolve their disputes in court or through arbitration. That bill was an example of how Congress can and should function. We worked together, across the aisle, to identify a problem, establish a bipartisan solution to that problem, and pass legislation to restore the rights of millions of Americans to their day in court.
The Speak Out Act is an opportunity for us to work together once again to end the oppressive culture of silence hiding sexual misconduct, promote transparency and accountability, and make the workplace safer for everyone.
This legislation has already passed the Senate unanimously, and it is supported by a broad coalition of public interest organizations, including the American Association for Justice, the National Alliance to End Sexual Violence, RALIANCE, The Army of Survivors, the National Domestic Violence Hotline, and the National Coalition Against Sexual Assault.
I thank our colleagues, Representatives Frankel, Buck, Cicilline, Jayapal, Griffith, Bustos, and Owens for their leadership on this issue.
Madam Speaker, I urge all Members to support the bill, and I reserve the balance of my time.
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Mr. NADLER. Madam Speaker, I yield myself such time as I may consume.
I only wish this bill did what the gentleman from Ohio says it does. By his logic, we should never have passed the Americans with Disabilities Act. We should have left it with the States. That obviously didn't work.
Madam Speaker, I yield 4 minutes to the gentlewoman from Florida (Ms. Lois Frankel), the sponsor of this bill.
Ms. LOIS FRANKEL of Florida. Madam Speaker, I am very, very proud to rise today in support of this game-changing, historic bill, the Speak Out Act. I thank our Senate and House sponsors, Representatives Buck and Bustos and Senators Gillibrand and Blackburn.
Thanks also to the Committee on the Judiciary, to our staff, and to Becca Flikier in my office. Most especially, thanks to two very, very courageous women who may be with us today, Gretchen Carlson and Julie Roginsky, who, against all odds, fought back against the abuse of powerful men and a powerful corporation and who have lifted the voices of women by leading efforts to stem the scourge of sexual harassment and assault in the workplace and civic society. Thank you to Gretchen and Julie.
Today, Madam Speaker, we will pass legislation that, in tandem with the no forced arbitration law, is aimed at stopping sexual abuse in the workplace and holding abusers accountable.
With all due respect to my friends on the other side, we are here to protect women from being raped, not States from being raped.
Current Federal law and most States allow employers and others to force nondisclosure agreements into employment and consumer contracts that silence survivors of sexual assault and harassment. These are known as forced NDAs, and one-third of our workforce is subject to them.
Madam Speaker, I have an example of one right here. I mean, for a layperson to look, I would just tell you, it is a bunch of gobbledygook. Nowhere would you know from reading this NDA, which is very typical, that it means if your boss rapes you, you can't tell a soul about it or you will be penalized.
Businesses are using these NDAs to cover up their dirty little secrets of sexual abuse that force survivors to bear the trauma in silence. It is not bad enough, Madam Speaker, that a survivor is humiliated, emotionally scarred, or physically hurt, that they have to quit their job or turn down a promotion or leave the field entirely. If they are forced to sign an NDA before a dispute arises, they must suffer in silence and not even be able to tell a spouse, a parent, or a coworker. If they do, they can be fired or disciplined or sued for damages and attorney's fees. That is crazy and that is unjust.
Forced NDAs punish the survivor and protect the perpetrator, who is set free to abuse and abuse and abuse again.
Today, we hold abusers accountable and change the culture of the workplace. Employers who were used to sweeping these stories under the rug will now be forced to stop toxic workplaces, sexual harassment, and sexual assault before it happens. This should lead to safer, more productive workplaces and a civic society for all.
The change couldn't come soon enough. It is not just the movie and the TV personalities we have read about that have been the victims of sexual abuse in the workplace. One in three women, disproportionately women of color, have suffered sexual harassment in the workplace. There are 71 million women in the workplace. That is millions and millions of women who have to endure this.
In our bipartisan Women's Caucus, we heard story after story from hotel maids raped by guests, waitresses pinched by their customers to earn tips, farmworkers assaulted in the field by their supervisors, a tech worker forced to date potential customers.
It doesn't matter whether you are a hotel maid, a farmworker, secretary, or CEO. People in all walks of life are being inappropriately touched, raped, and harassed by supervisors, coworkers, customers, and service providers. The Speak Out Act, Madam Speaker, will make these forced NDAs null and void.
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Mr. NADLER. Madam Speaker, I yield an additional 30 seconds to the gentlewoman from Florida.
Ms. LOIS FRANKEL of Florida. Madam Speaker, it does not prevent a business from protecting its trade secrets, and it does not prevent giving the survivors an option to sign an NDA at a post-claim settlement if they choose.
So, folks, let's all say ``no'' to the dirty little secrets that promote sexual abuse, ruin lives, and degrade businesses.
Madam Speaker, I urge my colleagues, Democrats and Republicans alike, to vote ``yes'' on the Speak Out Act.
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Mr. NADLER. Madam Speaker, I yield 3 minutes to the distinguished gentlewoman from Texas (Ms. Jackson Lee), a member of the committee.
Ms. JACKSON LEE. Madam Speaker, I thank Lois Frankel, Cheri Bustos, the chairman, and chairmen of our subcommittees, from David Cicilline to Chairman Cohen, for the work that they have done.
Let me agree with the gentleman from Kentucky in saying that it doesn't cost much. In fact, it doesn't cost much of anything as compared to the abuse that women have suffered for decades.
Let me also agree with the gentleman that there are and is something called States' rights under the Tenth Amendment, but let me be very clear that women don't have to suffer life-or-death circumstances under the Constitution.
I hold this book up for everybody to understand that this book does not require silence. This is not the Constitution of silence. This is not the Constitution of the 14th Amendment with equal protection of the law, yet as a woman you are silenced. It does not require due process, but you are silenced.
Let me give you a fact. More than half of all employed women report experiencing sexual harassment or sexual assault while at work. As a result, there is a significant concern that NDAs are, in fact, abusive, to the extent that it breaks a woman to not be able to tell of her harassment, abuse, or her rape.
Today, widespread sexual misconduct can be covered up by NDAs that are hiding the fine print that says, take it or leave it. When you have that, what you have is a circumstance where you are, in fact, promoting abuse and eliminating the power that women have and promoting the power that perpetrators have.
I would like to be able to stand on the Constitution that says to create a more perfect Union. This legislation does not allow the fine print, doesn't allow or make you sign an NDA before there is even an issue or a case that has arisen, and more importantly, I think it saves lives and future women from sexual assault and rape.
We know that Harvey Weinstein had this tool that was used over and over again. Employment contracts at his company included strict NDAs, which prevented survivors from coming forward with their stories.
I know that that is not the workplace that you want your daughters to go into, as our young women leave and begin to work from colleges, but also the women who work as factory workers, secretaries, and waitresses.
Those used to be the jobs that people would look down on and say: Oh, we know why they are in those jobs. No, they were in those jobs so they could support their family, being a single parent, raising up their children. I know those women every day. Busdrivers, schoolbus drivers getting minimum wage, but they encountered those conditions just as you would encounter them in the major corporations.
I am rising to support S. 4524, the Speak Out Act, and ask whether or not if you are a believer of the Constitution, where in it it says that you must be silenced, your due process is silenced, the 14th Amendment equal protection of the law is silenced.
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Mr. NADLER. Madam Speaker, I yield an additional 30 seconds to the gentlewoman.
Ms. JACKSON LEE. Madam Speaker, all of this is silenced. The threat of legal retaliation is daunting to these women, enough to keep workers from coming forward with their stories of abuse. The Harvard Business Review has indicated over one-third of the U.S. workforce is bound by NDAs.
Madam Speaker, I close my remarks by saying, I walk away from here and saying that when we cast this vote, we will cast a vote for creating a more perfect Union, and that women will not be second class, second rate without the same equal protection of the law as anyone else.
I applaud the secretaries, the busdrivers, the factory workers, the cafeteria workers who happen to be women, as well as I applaud the corporate women who are rising up the corporate ladder.
Madam Speaker, I rise in support of S. 4524, The Speak Out Act, that would limit the judicial enforceability of predispute nondisclosure and nondisparagement contract clauses relating to disputes involving sexual assault and sexual harassment.
This bill is critical to ending the culture of silence that quiets the voices of survivors of sexual harassment and abuse.
We must protect women from harassment, abuse, and violence of all types, at every opportunity, and in every facet of life.
As chair of the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, I've led the fight against domestic violence for many years, and sponsored the Violence Against Women Act Reauthorization Act, which led to VAWA's reauthorization in March.
Just as VAWA is vital to protect women in their personal lives, the Speak Out Act is vital to protect women in their work lives, empowering women against workplace harassment and abuse that can impair their careers and life paths.
Ending the cycle of abuse starts with eliminating the power that perpetrators have over their victims.
Currently, companies can sue workers for breaking a Non-Disclosure Agreement.
The threat of legal retaliation is daunting enough to keep workers from coming forward with stories of abuse.
These NDAs have become commonplace in many industries.
Harvard Business Review has estimated that over one third of the U.S. workforce is bound by NDAs.
These NDAs not only appear in settlements after a victim of sexual harassment has raised their voice, but also have become routinely included in standard employment contracts that are used at the time of hiring.
NDAs are being signed at the start of employment, prior to any abuse that occurs.
NDAs are intended to provide confidentiality and protection, especially with regard to corporate trade secrets.
But they have increasingly been misused to protect power dynamics that enable abusers to continue their dangerous and disgusting behavior.
One in 3 women has faced sexual harassment in the workplace during her career.
An estimated 87 to 94 percent of women who experience sexual harassment never file a formal complaint.
The reality is that many of these women have no voice because the system rewards male manipulators and penalizes women who challenge the status quo.
This amounts to institutionalized abuse.
The Speak Out Act can change this reality.
The Speak Out Act would prevent employers from enforcing nondisclosure or non-disparagement agreements (NDAs) in instances when employees and workers report sexual misconduct.
In the wake of the #MeToo and #TimesUp movements, our country has become acutely aware that men in power frequently leverage that power abusively to exploit women.
Sexual abuse and harassment can destroy a victim's financial security, mental health, and career path.
By standing up for their rights, the women who have been subjected to abuse often become mired in a lengthy and costly lawsuit that drains their finances, imposes a heavy psychic toll, and impairs their future job prospects by creating a misimpression that they are disruptive workers.
Women face a disturbing choice when sexually assaulted in the workplace: report the abuse publicly and face litigation, leave the company and abandon their income, or the choice that many are forced to make, put their heads down and pretend it did not happen.
Passing The Speak Out Act would provide victims with a third option to pursue justice.
It is time to amend the NDA system to strip the power from abusive employers and give it back to the employee.
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Mr. NADLER. Madam Speaker, this bill goes so far; the gentleman from North Carolina tells us, this bill goes too far. It goes so far, in fact, that every Republican Member of the Senate voted for it. What a bunch of radicals.
Madam Speaker, I yield 3\1/2\ minutes to the gentleman from Rhode Island (Mr. Cicilline).
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Mr. NADLER. Madam Speaker, I yield 2 minutes to the distinguished gentlewoman from Washington (Ms. Jayapal), a member of the committee.
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Mr. NADLER. Madam Speaker, I yield an additional 30 seconds to the gentlewoman from Washington.
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Mr. NADLER. Madam Speaker, I yield 1 minute to the distinguished gentleman from California (Mr. Correa), a member of the committee.
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Mr. NADLER. Madam Speaker, I yield 2 minutes to the gentlewoman from California (Ms. Speier).
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Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the gentlewoman from North Carolina (Ms. Manning).
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Mr. NADLER. Madam Speaker, I yield 2 minutes to the distinguished gentlewoman from Illinois (Mrs. Bustos).
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Mr. NADLER. Madam Speaker, I yield myself the balance of my time.
Madam Speaker, some have argued that the bill is not necessary because the courts may already choose not to enforce NDAs in certain cases. But this argument overlooks the reality that this scattershot approach to forced NDAs in sexual assault cases leaves survivors uncertain of their ability to tell their own stories without fear of reprisal, and it continues to allow NDAs to be used as an intimidation tactic by powerful corporations and abusers or as a coercive requirement for employment or everyday services.
Without a clear message from Congress that forced NDAs will no longer be enforceable in court, forced NDAs in employment and consumer contracts are likely to continue to have a chilling effect on survivors speaking out.
These contracts of silence limit the ability of millions of Americans to come forward in the first place. They contain sweeping prohibitions against any future negative statements about an employer. Standard language in these terms limit a survivor's ability to communicate by virtually any means, regardless of the truthfulness of the communication, in perpetuity.
In many cases, confidentiality clauses cover the existence of an NDA itself, meaning that even discussing the fact that one is bound by an NDA could constitute a violation of a contract.
There are cases in which survivors choose to waive their right to speak about their case. But that is a decision for survivors to make for themselves based on the circumstances, not something that should be forced upon them by their abusers or their enablers.
Last year, in a hearing that none of us will forget, the Judiciary Committee heard from four survivors of shocking workplace sexual harassment and assault. As they explained, after enduring horrific abuse at the hands of their perpetrators, confidential clauses in routine contracts prevented them from reporting and publicly disclosing their abuse.
The Speak Out Act ends this outrageous practice once and for all. Importantly, it does not prevent survivors from voluntarily entering into settlement agreements that include NDAs. Instead, it simply clarifies that these clauses cannot be enforced unless a survivor chooses to agree to the clause after the dispute arises.
The Biden-Harris administration has issued a statement strongly supporting this legislation, noting that: ``Prohibiting the use of predispute NDAs and nondisparagement clauses will increase access to justice and make the workplace safer for everyone.''
The United States Senate has unanimously passed this legislation.
I have heard the argument from some of my colleagues on the other side of the aisle that we should leave this to the States and that the national legislation impinges on States' rights somehow. This is from the same people who urge a national ban on abortion.
Madam Speaker, I urge my colleagues to send this critical message to the President's desk, and I yield back the balance of my time.
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