The Efficacy of New York's Qualified Prohibition on NDAs and Reforms that Can Protect Sexual Harassment Survivors

The numerous sexual harassment scandals that were uncovered following the Harvey Weinstein exposé have at least one very positive byproduct: new state legislation aimed to protect and combat sexual misconduct in the workplace. New York is leading the charge by creating a legislative framework that protects a broader spectrum of workers against sexual harassment in the workplace. The State’s 2019 fiscal year budget substantiates the commitment to empower survivors and protect those who may be future targets of sexual harassment in their workplaces. As part of this framework, the State’s human rights laws now extend to and protect independent contractors, who ordinarily would have limited federal protections against sexual harassment because they are ineligible for Title VII protection.

In another forging step, New York now prohibits employers from including or agreeing to include a nondisclosure agreement (NDA) in a settlement agreement regarding a sexual harassment claim, unless the employee seeks the confidentiality. This prohibition is a step in the right direction as new data shows the increasing prevalence of NDAs in the workplace, often silencing instrumental employee speech.