On Thursday, the US Senate passed the ‘speak out’ bill which aims to limit the use and enforceability of non-disclosure agreements (NDAs) for cases of sexual misconduct in the workplace. The bill, introduced in July, now only has to pass through the House and be signed by the President to become law. It states:

“With respect to a sexual assault dispute or sexual harassment dispute, no nondisclosure clause or non-disparagement 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”

The bill has amassed bipartisan support, passing the Senate with unanimous consent and having several sponsors from both sides. The drafters found that one-third of women have faced sexual harassment in the workplace, and roughly 90 percent of those who do never file a complaint. Indeed, the #MeToo movement highlighted the prevalence of NDAs in many industries, and how employees were afraid to speak out due to fear of legal consequences.

It should be noted that the bill only covers NDAs made pre-dispute. NDAs signed as part of a settlement after allegations, as was the case with casino company Wynn Resorts, would still be enforceable. In the Wynn Resorts report, the Massachusetts Gaming Commission concluded on the final page that “[t]heir efforts at secrecy made it exceedingly difficult, if not impossible, for gaming regulators to detect this potentially derogatory information.” Therefore, while the bill is a step forward, some may argue that post-dispute NDAs are still problematic in sexual misconduct cases.