PRINTER'S NO. 2400
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1906
Session of
2023
INTRODUCED BY FLOOD, MAJOR, KLUNK, SCHEUREN, M. MACKENZIE,
KRUPA, OWLETT, STENDER, R. MACKENZIE, HAMM, STEHR, SMITH,
SCHMITT, BENHAM, GAYDOS, GILLEN, DIAMOND, KAZEEM AND GROVE,
DECEMBER 11, 2023
REFERRED TO COMMITTEE ON JUDICIARY, DECEMBER 11, 2023
AN ACT
Providing for limitation on judicial enforceability of
nondisclosure and nondisparagement contract clauses regarding
sexual assault or sexual harassment.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Judicial
Enforceability of Nondisclosure Contracts Involving Sexual
Assault Act.
Section 2. Declaration of purpose.
The General Assembly finds and declares as follows:
(1) Sexual harassment and sexual assault remain
pervasive in the workplace and throughout civic society,
affecting millions of Americans.
(2) Eighty-one percent of women and 43% of men have
experienced some form of sexual harassment or sexual assault
throughout their lifetime.
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(3) One in three women have faced sexual harassment in
the workplace during their career, and an estimated 87% to
94% of individuals who experience sexual harassment never
file a formal complaint.
(4) Sexual harassment in the workplace forces many women
to leave their occupation or industry or pass up
opportunities for advancement.
(5) In order to combat sexual harassment and sexual
assault, it is essential that victims and survivors have the
freedom to report and publicly disclose their abuse.
(6) Nondisclosure and nondisparagement provisions in
agreements between employers and current, former and
prospective employees and independent contractors and between
providers of goods and services and consumers, can perpetuate
illegal conduct by silencing those who are survivors of
illegal sexual harassment and sexual assault or illegal
retaliation, or have knowledge of such conduct, while
shielding perpetrators and enabling them to continue their
abuse.
(7) Prohibiting nondisclosure and nondisparagement
clauses will 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.
Section 3. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Nondisclosure clause." A provision in a contract or
agreement that requires the parties to the contract or agreement
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not to disclose or discuss conduct, the existence of a
settlement involving conduct or information covered by the terms
and conditions of the contract or agreement.
"Nondisparagement clause." A provision in a contract or
agreement that requires one or more parties to the contract or
agreement not to make a negative statement about another party
that relates to the contract, agreement, claim or case.
"Sexual assault dispute." A dispute involving an offense
under 18 Pa.C.S. Ch. 31 (relating to sexual offenses), including
when the victim lacks the capacity to consent.
"Sexual harassment." Unwelcome sexual advances, requests for
sexual favors and other conduct of a sexual nature.
"Sexual harassment dispute." A dispute relating to conduct
that is alleged to constitute sexual harassment.
Section 4. Limitation on judicial enforceability of
nondisclosure and nondisparagement contract clauses
regarding sexual assault or sexual harassment.
(a) Unenforceable clauses.--With respect to a sexual assault
dispute or sexual harassment dispute, a nondisclosure clause or
nondisparagement clause agreed to before the dispute arises
shall not be judicially enforceable in the courts of this
Commonwealth in instances in which conduct is alleged to have
violated State law.
(b) Right to speak freely.--Nothing in this act shall
prohibit the Commonwealth or a municipality from enforcing a
provision of State law governing nondisclosure clauses or
nondisparagement clauses that is at least as protective of the
right of an individual to speak freely as provided by this act.
(c) Pseudonyms.--Nothing in this act shall be construed to
supersede a provision of Federal or State law that governs the
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use of pseudonyms in the filing of claims involving sexual
assault disputes or sexual harassment disputes.
(d) Protection of trade secrets or proprietary
information.--Nothing in this act shall prohibit an employer and
an employee from protecting trade secrets or proprietary
information.
Section 5. Applicability.
This act shall apply with respect to a claim that is filed in
a court of competent jurisdiction under State law on or after
the effective date of this section.
Section 6. Effective date.
This act shall take effect in 60 days.
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