Will Congress Confront Workplace Sexual Harassment?

The fight against workplace sexual harassment is at the center of a new effort in Congress to ban non-disclosure agreements.

Five members of the U.S. House introduced the EMPOWER Act on July 18. The bill–whose full name is Ending the Monopoly of Power Over Workplace Harassment through Education and Reporting Act–would prohibit businesses from requiring workers to sign non-disclosure or non-disparagement agreements as conditions of employment. It would not, however, prevent workers were from entering into voluntary NDAs as part of potential settlements.

The proposed legislation would also amend the tax code to ensure taxpayer money isn’t used to support settlements with victims of workplace sexual harassment and would further mandate that public companies disclose any settlements with employees to the U.S. Securities and Exchange Commission. Awareness-building is also an aim: The EMPOWER Act would require companies to have training focused on workplace sexual harassment and would mandate a hotline to report harassment to the Equal Employment Opportunity Commission.

The bill was introduced with bipartisan support, with three Democrats and two Republicans signing on as original co-sponsors. It mirrors a Senate measure that was introduced in June by Sens. Kamala Harris (D-Calif.) and Lisa Murkowski (R-AK).

In a statement released last week, Harris noted that there has long been a “culture of fear and silence” in many companies that has enabled workplace sexual harassment to run rampant. The EMPOWER ACT, added Rep. Ted Poe (R-Texas), counters that trend by promoting accountability and transparency, which Poe said “is the least that Congress can do.”

Federal lawmakers have seen a series of starts and stops in their efforts to curb workplace sexual harassment in recent months. Legislators introduced a bill to ban forced arbitration but it received little traction; the House and Senate did adopt legislation to mandate that Congressmembers report sexual-harassment settlements with which they’re involved, but a compromise bill between both chambers has yet to move forward.

In light of the momentum of the #MeToo movementNDAs have become a focus of workplace advocates, who contend such policies have contributed to cultures where workers feel discouraged from reporting misconduct, and harassers feel emboldened by a lack of consequences.

In New Jersey, lawmakers recently proposed a bill to bar the use of NDAs in sexual-harassment settlements. Earlier this month, Vermont expanded its protections for victims of workplace sexual harassment to include interns, independent contractors and volunteers; the new measure also prevents employers from forcing workers to sign away their right to report and bans companies from refusing to re-hire employees who previously agreed to settlement agreements. Similar legislation was enacted in New York earlier this year.

The EMPOWER Act was introduced with the support of 22 national organizations that advocate for the rights of workers. However, the future of the legislation and other measures to combat workplace sexual harassment likely rests on Congressional leadership who, according to some pundits, won’t be making the topic a priority any time soon.

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Jen Colletta
Jen Colletta is managing editor at HRE. She earned bachelor's and master's degrees in writing from La Salle University in Philadelphia and spent 10 years as a newspaper reporter and editor before joining HRE. She can be reached at hreletters@lrp.com.