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Employers Try to Force Confidentiality Agreements on Sexual Harassment Victims


Sexual harassment issues, in the workplace and beyond, have become a popular topic in the media. We recognize sexual harassment claims to typically involve unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. When employees complain of sexual harassment, they are often retaliated against in many ways. All of this conduct is unlawful under Title VII which prohibits sexual harassment, as well as retaliation based on opposition and participation in activity protected by Title VII. One of the new issues that has come up is the employer’s use of forced confidentiality or non-disclosure agreements.

New Legislation in New Jersey Passed in Response to Claims

The Senate in New Jersey found the need to pass legislation that would protect victims of sexual harassment in the workplace from forced confidentiality or non-disclosure agreements. Although the legislation does not go so far as to ban such agreements, it does provide options for such employees who want to bring their sexual harassment claims to light despite being forced to sign them.

Claims of Harassment and Retaliation by a State Government Employee

According to the New Jersey lawsuit, a state employee alleged that she had been sexually harassed by her supervisor. She complained about the harassment and, although an investigation occurred, it was allegedly very lacking. Worse than not conducting a proper investigation, the employer forced the employee who complained to sign a confidentiality agreement that prohibited her from discussing her allegations of sexual harassment with anyone. When the employee later described her claims to her husband, she was forced to quit.

Request for Court Action to Prevent Enforcement of Agreement

The attorney representing the state employee filed a motion with the court requesting an order preventing the employer from enforcing the confidentiality agreement. The lawsuit asserts that the employer implemented a policy and practice of threatening employees with disciplinary action, including termination if they discussed anything about their sexual harassment claims.

Typically, if an employee signs a settlement agreement when resolving their discrimination, harassment, or retaliation claims, it would include language barring disclosures of the details of the claim and the settlement. But, being required to sign such an agreement before a formal claim has even been made is a completely different issue.

Recognizing Unlawful Retaliation in the Workplace

The term retaliation refers to a situation where an employer takes an “adverse employment action” against an employee for “engaging in legally protected activity.” Basically, “adverse employment action” means an adverse or negative job action, such as demotion, discipline, termination, reduction in salary, or changes in job assignments or shift schedules. In some cases, retaliation can be more subtle, such as being blamed for co-worker’s poor performance or receiving unjustified negative performance evaluations.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King . You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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