How ‘Speak Out Act’ will affect sexual harassment concerns in the workplace

December 10, 2022

Earlier this month Congress passed the “Speak Out Act” designed to address the ongoing issues of sexual assault and sexual harassment in the workplace.

Under the law, employers cannot mandate that an employee agree to not disparage or disclose sexual assault or sexual harassment concerns before those concerns arise.

The law states, “With respect to a sexual assault dispute or sexual harassment dispute, no nondisclosure clause or nondisparagement clause agreed to before the dispute arises shall be judicially enforceable in instances in which the conduct is alleged to have violated Federal , Tribal, or State law.”

This means, for example, that an employee cannot agree to nondisparagement or nondisclosure as a condition of employment.

The law’s purported purpose is so that victims and survivors have the freedom to report and publicly disclose their abuse. The law contends that nondisclosure and nondisparagement provisions silence survivors of this abuse and shield perpetrators. The law purports to “empower survivors to come forward, hold perpetrators accountable for abuse, improve transparency around illegal conduct, enable the pursuit of justice, and make workplaces safer and more productive for everyone.”

While the law is being lauded by the legislators as an important step toward ending sexual misconduct in the workplace, in reality it has little bite and will likely not have a big impact on eradicating sexual harassment and sexual assault.

Employees who settle harassment and assault cases after a dispute arises can enter into such agreements as part of any settlement. The majority of nondisclosure and nondisparagement agreements occur in the settlement documents after the harassment occurs.

More compelling in the Speak Out Act were the statistics shared in the law. It’s hard to imagine that in 2022, according to the law:

  • Sexual harassment and assault remain pervasive in the workplace and throughout civic society, affecting millions of Americans.
  • Eighty-one percent of women and 43% of men have experienced some form of sexual harassment or assault throughout their lifetime.
  • One in 3 women has faced sexual harassment in the workplace during her career, and an estimated 87 to 94 percent of those who experience sexual harassment never file a formal complaint.
  • Sexual harassment in the workplace forces many women to leave their occupation or industry, or pass up opportunities for advancement.

Because we know that sexual misconduct in the workplace is rampant, employers need to a take giant leaps immediately to make eradicating sexual harassment and sexual assault in the workplace a priority.

Employers need to establish that there is zero tolerance for any sexual behaviors in the workplace — even if the parties think it is consensual and even if everyone is laughing. In reality, employees are going along to get along. And too many people engaging in sexual misconduct justify their actions.

Employers should not tolerate flirting, propositions for sexual activity, “that’s what she said” jokes, sexual innuendos, sexual jokes, cartoons, memes or gifs. And no one at work should be talking about their own sex life or sexual activities or the sex life or activities of others.

Preventing sexual harassment starts with leadership who set expectations and model appropriate professional behavior.

Leaders need to explain their expectations trough policies, training and continuous reminders. There should not be a “one and done” rule where HR talks about the anti-harassment policy one time in orientation and then never speaks of it again.

If harassment allegations are made, there needs to be an investigation. Managers need to stop waiting for a “formal complaint.” Harassment concerns are typically raised generically and verbally. Managers have a legal duty to report the concerns to human resources, even if the employee doesn’t want the manager to say or do anything with the information.

If found to be true, the offending employee must be held accountable and the victim needs to be free from retaliation.