By Rick Shulman, Member of the Firm
In the aftermath of the #MeToo movement, and the furor surrounding recent newsworthy cases relating to sexual harassment, a number of states across the country have enacted or considered legislation which would permit the victims of discrimination or sexual harassment to disclose their experiences without the fear of legal retribution. Perhaps not surprisingly, New Jersey, which is often in the forefront of progressive statutory and case law changes in this context, in March 2019 amended its “Law Against Discrimination” (“LAD”) in a number of significant respects to “shine the light” on certain perceived inequities in the employment context, and with respect to agreements providing for non-disclosure of claim details as a condition of settlement. The main provisions of this new law are as follows:
It is important to note that these statutory provisions provide for recourse to a court for enforcement of the substantive rights bestowed by the legislation, even if the underlying employment contract or settlement agreement mandate dispute resolution through arbitration. Whether an employment contract waiver of the right to court adjudication for claims arising outside of the new statutory provisions (i.e., mandatory arbitration) will be deemed constitutional is an open question. Lastly, this statute does not address similar confidentiality provisions in non-employment harassment or similar contexts (for example, in the Stormy Daniels situation), and it remains to be seen whether the public policies behind this “sunshine” legislation will, in the future, be applied to those situations as well.
Rick Shulman
Contact Rick at rshulman@pricemeese.com should you have questions about this article.
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