Both houses of Congress have now introduced bills — with some Republican support — that seriously disregard the constitutional limits on Congress’ power. The proposed legislation, the “Speak Out Act,” would prohibit all courts from enforcing workplace nondisclosure agreements covering sexual assault or harassment.
Advocates say sexual misconduct will continue unabated unless allegations, not just facts, are made public. Because of that, multiple states have already acted to prevent sexual misconduct NDAs. If those measures actually work to limit sexual harassment, then we will see other states learn and create procedures in their own states to protect victims better.
But this is no evidence-based approach. This is a sledgehammer with some serious flaws.
First, it’s unconstitutional. Congress does not have the authority to regulate purely local matters. As the Supreme Court said in 2014, “the States have broad authority to enact legislation for the public good,” but the federal government “has no such authority.” The federal government can regulate activities that substantially affect interstate commerce, which has enabled minimum wage and workplace nondiscrimination laws. But those laws are at the edge of Congress’s authority, and NDAs are a stretch from there. To fall within Congress’s power, NDAs would have to prevent people from working in certain parts of the country or affect the interstate sale of products. Courts may not buy it. Last year, one court ruled that the federal government lacked the power to prohibit evictions in the name of controlling COVID-19 because local evictions are simply not that related to interstate commerce.
Second, the legislation is too broadly worded. The legislation prevents the enforcement of NDAs where conduct is “alleged to have violated” sexual harassment law. This means employers must allow allegations to be shared publicly before any assessment of facts, which may end up showing the allegations were false, were incomplete, or described lawful activity. The fact is, sexual harassment claims, putting assault aside, have a gray area. Plus, many states now include gender identity protection in their sexual harassment laws, creating uncharted territory about how bathroom policies and pronoun usage might lead to sexual harassment allegations.
The exposure of “gray area” details creates real harm. Employees and employers have the right to due process, the right to give their side of the story before being labeled a sexual deviant. Just ask President Joe Biden. Tara Reade accused then-Sen. Biden of sexually assaulting her (digitally penetrating her) in 1993. Biden is the world’s most powerful man, and he had the platform to respond. But most employers will find themselves guilty in the court of public opinion before any facts have been investigated. Additionally, when employers know that all workplace conduct, before an assessment of wrongdoing, will be shared, employers are likely to overcorrect by limiting social interactions or generally creating a tense workplace environment.
Finally, the legislation could harm victims. Most victims are not seeking to become media stars. They want to be compensated without their own workplace conduct, such as chats, emails, and mannerisms, made public spectacle. NDAs work for these victims. After the victim brings a complaint, the employer has an incentive to settle quickly and award the victim. But without an NDA, facts are far more likely to seep out, meaning the employer has an entirely different incentive: to fight back and win.
The goal is to prevent sexual misconduct in the workplace. This legislation doesn’t achieve that. It simply allows alleged victims to generate media headlines before the accused can share their stories. The Speak Out Act is more likely to trample due process rights than inspire trust and equality in the workplace, and Congress lacks the authority to enact it.
May Mailman is a senior legal fellow at Independent Women’s Law Center.
