Imagine this scenario: You are a female employee at a large Connecticut company in a male-dominated industry. You are sexually assaulted and subsequently fired. As part of your termination, your employer requires you to sign a nondisclosure agreement (NDA) that prevents you from reporting the assault.
You spend the next year dealing with the consequences of losing your job and the mental health repercussions of being assaulted. When you finally get the courage to speak out and report it, your former employer scares you back into submission by waving the NDA in your face. The abuse you’ve suffered is further perpetuated.
What legal recourse do you then have? Connecticut Senate Bill 355 seeks to address this question by nullifying and invalidating NDAs entered into between employers and employees that are designed to cover up allegations of misconduct – including illegal discrimination and harassment.
NDAs have notoriously been used by the rich and powerful to silence their victims into submission: Jeffrey Epstein, Harvey Weinstein, Sean “Diddy” Combs, Vince McMahon. There is a reason that you remember the names of the abusers, but not the names of their victims. It’s by design.
Janel Grant, a brave survivor of sexual assault and sex trafficking in Connecticut, has publicly spoken out in support of Connecticut Senate Bill 355. Her lawsuit against Vince McMahon and the WWE seeks to invalidate an NDA she was forced to sign, and to expose the coercive control culture of her former employer.
The current text of Senate Bill 355 places restrictions on the use of NDAs directly into the Connecticut Fair Employment Practices Act (CFEPA), which carries with it a 300-day statute of limitations period. The bill does not contain a carve out for NDA-related claims to bypass the requirement that claimants must exhaust administrative remedies with the Connecticut Commission on Human Rights and Opportunities (CHRO) first.
The broad implications of NDAs, which can include non-compete or no-poach clauses, demonstrate why claims involving these agreements are inappropriate for the CHRO, the state agency tasked with investigating workplace discrimination complaints, to handle. We don’t give CHRO jurisdiction to handle disputes regarding non-compete agreements in employee settings, so we should not give it jurisdiction over disputes regarding non-disclosure agreements either.
The CHRO is currently so backlogged it can take upwards of six months just to process the complaint, never mind adjudicating them. The CHRO process can then be used as another tool for employers to silence an employee, as the process itself can take an exorbitant amount of time and is not public record.
The CHRO has no inherent powers to penalize an employer for attempting to enforce an NDA, or to prevent them from using intimidation tactics against their victims while awaiting CHRO proceeding. If a victim with a pending CHRO claim is threatened by their former employers they cannot go to the court. Instead, they must wait the imposed 180-day period for the CHRO to release their jurisdiction of the complaint. It is incredibly dangerous for victims of sexual assault and abuse.
When survivors under NDAs are then forced to jump through the hoops of an underfunded state agency, they are effectively forced into silence by the administrative process yet again. As claims filed under the federal Speak Out Act are not required to first go through the federal administrative agency tasked with assessing claims under Title VII, the Equal Employment Opportunities Commission (EEOC), the same should be the case in Connecticut with the CHRO.
Senate Bill 355 is undoubtedly a step in the right direction in order to protect employees working in Connecticut. Without it, victims will continue to suffer in silence at the hands of powerful employers. Ultimately, this legislation asks a simple question: what should Connecticut value more, silent workplaces or safe ones?
If the Connecticut legislature decides to pass Senate Bill 355 during the current legislative session, it would send a clear message that in Connecticut, accountability should never be confidential.
Erica O. Nolan is a partner at Hurwitz Sagarin & Slossberg in Milford and serves as Connecticut counsel for Janel Grant.