Are our case studies too obvious? Are we now at a point where everyone understands that sexual harassment is not acceptable? Should our harassment prevention workshops be focused less on harassment and more on the subtleties of bullying behaviors? In the summer and early fall of 2017, those were the questions I was debating with my fellow educators at the Cornell University ILR School programs for human resources professionals. We were responding to feedback from the participants in our train-the-trainer style harassment prevention workshops, who are HR professionals from the private and public sectors representing a cross-section of employers. They seemed to feel our workplaces had evolved past blatant forms of sexual harassment.

And then came #MeToo, which proved those participants to be mistaken in some of their basic assumptions. How could people have thought so wrong? In New York State, and other legislatures throughout the country, fault has been placed on contracts – binding settlement agreements that imposed a cone of silence on complainants in exchange for money. Having identified past contractual agreements as perpetuating the problem, New York State has been aggressive in its efforts to prevent employers from using such agreements for that purpose going forward, most recently with new laws that took effect on November 17, 2023, immediately upon being signed by the governor.

Silencing an Individual After a Complaint Has Been Raised
A series of provisions under New York law restrict employers from binding complainants to keep confidential their complaints of harassment and discrimination.

1. Restricting disclosure of the facts is unlawful.
New York law says that, unless the complainant wants to keep things confidential, the employer cannot preclude the complainant from discussing the facts and circumstances underlying the harassment complaint. Any agreement that purports to impose such a restriction is invalid.

2. The restrictions apply to claims of discrimination, harassment, or retaliation.
This is one of the recent amendments to the New York law. Previously the law only applied to discrimination claims.

3. Penalties in the agreement to disincentivize disclosure are impermissible.
The recent amendments invalidate any clause in an agreement settling claims of harassment, discrimination or retaliation if the complainant is penalized for violating a nondisclosure or nondisparagement clause. Note that this provision seems to apply even to confidentiality and nondisparagement clauses that allow disclosure of the facts and circumstances underlying a discrimination complaint, so compliance with point 1 above does not excuse the obligation to comply with the ban on penalties. The types of penalties that are specifically prohibited include liquidated damages (specifying some amount that the complainant owes the employer for breaching the clause) or forfeiting any portion of the settlement payment.

4. Making the complainant agree that no wrong was done is impermissible.
This new provision in the law precludes requiring the complainant to disclaim or affirmatively state, as part of a release agreement, that the complainant was not subject to unlawful discrimination, harassment or retaliation.

Sometimes Everyone Wants to Keep Things Quiet
New York law does recognize, however, that sometimes even the complainant would prefer to be reassured of confidentiality. Under those circumstances, the state allows the complainant to enter into a written confidentiality agreement with the employer that is separate from the settlement and release agreement.

The law dictates very specific terms to this confidentiality agreement. It needs to be written in plain English and, if applicable, the complainant’s primary language. It needs to grant the individual 21 days to consider the agreement, and then seven days post-signing to reconsider and revoke the agreement. The confidentiality clause also cannot restrict an individual from providing information in response to a subpoena or in the context of a government investigation of a complaint, or from disclosing information necessary to receive unemployment insurance, Medicaid or other public benefits.

FAQs issued by the New York State Division of Human Rights had stated that the 21-day review period was not waivable, meaning that an individual could not sign the confidentiality agreement before the end of the 21-day period. This restriction was removed by the November 17, 2023 amendments, so that while complainants must always have the option to consider the confidentiality agreement for a full 21 days, they can elect to sign prior to the end of that 21-day period.

Prophylactically Imposing Gag Clauses
Employees may be required at the outset or during the course of their employment to sign a confidentiality agreement with their employer. New York State law invalidates those provisions if they restrict employees’ (or potential employees’) ability to disclose factual information related to a future claim of discrimination unless the provisions notify the employee that speaking with law enforcement, the equal employment opportunity commission, the state division of human rights, the attorney general, a local commission on human rights, or an attorney retained by the employee are permitted.

Notification to the attorney general was a recent change to the law, so employers that updated their agreements previously to include the notice clause will now need to revise that notice clause. One final change under the November 17, 2023 amendments to the law is that these requirements with regard to future claims are no longer limited to employees. Organizations are required to comply with the same restrictions on their confidentiality agreements with independent contractors.

Will This Work?
The restrictions certainly further the direct objective of ensuring individuals are free to speak about harassment, discrimination or retaliation that they experience in the workplace. But just because someone has the right to speak does not mean that right will be exercised. There remain too many societal disincentives to speaking out, from fear of disbelief or attacks, to harm to the complainant’s reputation and career opportunities, to fear of defending a defamation claim. Individuals are certainly more empowered now than they were prior to 2017 to come forward with complaints, and more are doing so, but we can hardly consider this problem to have been solved. It’s more of a work in progress, and the most recent amendments to New York law require that employers once again revisit their employment practices to ensure they are complying with the state’s mandates on how to resolve this thorny societal problem.

By Tracey I. Levy