Utah Passes Bill Making Confidentiality Clauses in Sexual Assault Cases Unenforceable

The Utah state legislature has taken a significant step forward in addressing the issue of sexual assault and harassment by passing a bill that renders confidentiality clauses related to these cases unenforceable. This development comes as a response to the prevalence of sexism and harassment experienced by women in the state's workplaces. The bill, known as HB55 and sponsored by Rep. Kera Birkeland, has successfully passed through both the House and Senate, with amendments. It is now awaiting enrollment in final form before being sent to the governor for his signature, veto, or becoming law without his signature.

Background and Impact

Confidentiality clauses, often in the form of nondisclosure and non-disparagement agreements, have historically hindered employees from reporting instances of sexual harassment or assault within their organizations. These agreements, which can be commonplace nationwide, create an environment of silence and prevent victims from seeking justice. By passing HB55, Utah aims to break this cycle and empower victims to come forward without fear of repercussions.

Within Utah's House, the bill was approved with overwhelming support, garnering 71 representatives in favor and only 4 representatives absent or not voting. The Senate also backed the bill, with 24 senators in favor and 5 senators absent or not voting. If the bill becomes law, it will apply to confidentiality clauses that were in effect in Utah from January 1, 2023, onwards.

Kimberly Bernhardt, an advocate with the group A Bolder Way Forward, expressed her hope that this legislation will bring about positive change for women in Utah's workplaces. As someone who championed the bill, Bernhardt testified to the House Judiciary Committee in support of it, highlighting the urgent need for reform.

The Impact of Nondisclosure Agreements

A Bolder Way Forward acknowledges the difficulty in accurately gauging the prevalence of confidentiality agreements. Nondisclosure agreements, in particular, contribute to a culture of silence and discourage victims from speaking out. Bernhardt emphasized that individuals who experience sexual harassment outside of the workplace have legal recourse for defamation, while those within employment face a different set of laws that limit their options for seeking justice.

According to a statewide study conducted by the Utah Women & Leadership Project, only around 11% of respondents agreed or strongly agreed that most organizations in Utah would appropriately handle a sexual harassment report. Additionally, the majority of sexual assaults go unreported to the police nationwide, further emphasizing the importance of creating a safe and supportive environment for victims to come forward.

Comparison with Federal Legislation

The passage of the Speak Now Act by the US Congress in 2022 marked a significant step in addressing the issue of sexual assault and harassment. However, this federal law only prohibits the enforceability of nondisclosure or nondisparagement clauses agreed to before a dispute arises. It does not cover NDAs signed as a result of such disputes. The Utah bill seeks to address this gap and provide greater protection for victims.

Protecting Victims and Ensuring Accountability

The Utah bill not only renders confidentiality clauses unenforceable but also holds those who attempt to enforce them accountable. The bill stipulates that individuals attempting to enforce a confidentiality clause may be held liable for costs and attorney fees under specific conditions. Employers found to be in violation of the bill would be liable for all costs, including reasonable attorney fees, resulting from legal action. However, they would not be entitled to monetary damages for breaching the confidentiality clause.

Bernhardt highlighted the power dynamics at play in sexual harassment cases, where companies often have access to legal representation while victims do not. This inequality of resources often leads victims to settle quickly, rather than pursuing legal action. The bill acknowledges this issue and includes an amendment that allows an employee to withdraw from a settlement agreement within three business days if it includes a confidentiality clause related to sexual misconduct.

By passing this bill, Utah aims to create a workplace environment where victims are supported, believed, and provided with the necessary tools to seek justice. It is a significant step towards dismantling the culture of silence and ensuring that individuals are not forced to remain silent or leave their jobs due to the lack of support and belief in their claims.

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By: rmchan@businessinsider.com (Rosalie Chan)
Title: Utah Passes Bill Making Confidentiality Clauses in Sexual Assault Cases Unenforceable
Sourced From: www.businessinsider.com/utah-bill-nda-sexual-assault-harassment-unenforceable-2024-2
Published Date: Sat, 17 Feb 2024 01:26:35 +0000