Stop Silencing Victims Act

II 116TH CONGRESS 1ST SESSION S. 1314 To establish that certain provisions of a nondisclosure agreement between a public sector employer and an employee shall be unenforceable. IN THE SENATE OF THE UNITED STATES MAY 2, 2019 Mr. KENNEDY (for himself and Ms. SINEMA) introduced the following bill; which was read twice and referred to the Committee on Homeland Secu- rity and Governmental Affairs A BILL To establish that certain provisions of a nondisclosure agree- ment between a public sector employer and an employee shall be unenforceable. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Stop Silencing Victims 4 Act’’. 5 VerDate Sep 11 2014 21:32 May 07, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1314.IS S1314 kjohnson on DSK79L0C42 with BILLS 2 •S 1314 IS SEC. 2. NONDISCLOSURE AGREEMENT UNENFORCEABLE 1 UNDER THE CIVIL RIGHTS ACT OF 1964. 2 Title VII of the Civil Rights Act of 1964 (42 U.S.C. 3 2000e et seq.) is amended by adding after section 717 the 4 following: 5 ‘‘SEC. 717A. NONDISCLOSURE AGREEMENT UNENFORCE- 6 ABLE. 7 ‘‘(a) IN GENERAL.—Any covered provision of a non- 8 disclosure agreement that is entered into by an employee 9 described in section 717(a) and an entity to which such 10 section applies shall be unenforceable against that com- 11 plainant employee. 12 ‘‘(b) COVERED PROVISION.—In this section, the term 13 ‘covered provision’ means a provision of a nondisclosure 14 agreement— 15 ‘‘(1) that is entered into after the date of enact- 16 ment of the Stop Silencing Victims Act; 17 ‘‘(2) that prohibits the disclosure of information 18 relating to an allegation or series of allegations that 19 could plausibly give rise to a valid claim of sex dis- 20 crimination; and 21 ‘‘(3) relating to material that is not otherwise 22 prohibited by law from being disclosed. 23 ‘‘(c) DEFENSE.—In any action or proceeding to en- 24 force a covered provision, an employee described in section 25 717(a) may raise as a defense the unenforceability of a 26 VerDate Sep 11 2014 21:32 May 07, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1314.IS S1314 kjohnson on DSK79L0C42 with BILLS 3 •S 1314 IS covered provision of a nondisclosure agreement, as set 1 forth in this section. 2 ‘‘(d) CONFIDENTIALITY.— 3 ‘‘(1) IN GENERAL.—Personally identifying in- 4 formation about a complainant employee that would 5 otherwise be held confidential in accordance with a 6 covered provision of a nondisclosure agreement shall 7 not be made public, unless the complainant employee 8 chooses to make that information public. 9 ‘‘(2) UNLAWFUL RETALIATION.—A violation of 10 the prohibition described in paragraph (1) may be 11 considered evidence of unlawful retaliation against 12 the complainant employee.’’. 13 SEC. 3. NONDISCLOSURE AGREEMENT UNENFORCEABLE 14 UNDER THE GOVERNMENT EMPLOYEE 15 RIGHTS ACT OF 1991. 16 Title III of the Government Employee Rights Act of 17 1991 (42 U.S.C. 2000e–16a et seq.) is amended by adding 18 at the end the following: 19 ‘‘SEC. 305. NONDISCLOSURE AGREEMENT UNENFORCE- 20 ABLE. 21 ‘‘(a) IN GENERAL.—Any covered provision of a non- 22 disclosure agreement that is entered into by a Presidential 23 appointee described in section 303 or a State employee 24 described in section 304 and an entity employing such ap- 25 VerDate Sep 11 2014 21:32 May 07, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1314.IS S1314 kjohnson on DSK79L0C42 with BILLS 4 •S 1314 IS pointee or employee, as the case may be, shall be unen- 1 forceable against that complainant Presidential appointee 2 or State employee. 3 ‘‘(b) COVERED PROVISION.—In this section, the term 4 ‘covered provision’ means a provision of a nondisclosure 5 agreement— 6 ‘‘(1) that is entered into after the date of enact- 7 ment of the Stop Silencing Victims Act; 8 ‘‘(2) that prohibits the disclosure of information 9 relating to an allegation or series of allegations that 10 could plausibly give rise to a valid claim of sex dis- 11 crimination; and 12 ‘‘(3) relating to material that is not otherwise 13 prohibited by law from being disclosed. 14 ‘‘(c) DEFENSE.—In any action or proceeding to en- 15 force a covered provision, a Presidential appointee de- 16 scribed in section 303 or a State employee described in 17 section 304 may raise as a defense the unenforceability 18 of a covered provision of a nondisclosure agreement, as 19 set forth in this section. 20 ‘‘(d) CONFIDENTIALITY.— 21 ‘‘(1) IN GENERAL.—Personally identifying in- 22 formation about a complainant Presidential ap- 23 pointee described in section 303 or State employee 24 described in section 304 that would otherwise be 25 VerDate Sep 11 2014 21:32 May 07, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1314.IS S1314 kjohnson on DSK79L0C42 with BILLS 5 •S 1314 IS held confidential in accordance with a covered provi- 1 sion of a nondisclosure agreement shall not be made 2 public, unless that complainant appointee or em- 3 ployee chooses to make that information public. 4 ‘‘(2) UNLAWFUL RETALIATION.—A violation of 5 the prohibition described in paragraph (1) may be 6 considered evidence of unlawful retaliation against 7 the complainant appointee or employee.’’. 8 SEC. 4. NONDISCLOSURE AGREEMENT UNENFORCEABLE 9 UNDER THE CONGRESSIONAL ACCOUNT- 10 ABILITY ACT OF 1995. 11 Title II of the Congressional Accountability Act of 12 1995 (2 U.S.C. 1311 et seq.) is amended by adding at 13 the end the following: 14 ‘‘SEC. 208. NONDISCLOSURE AGREEMENT UNENFORCE- 15 ABLE. 16 ‘‘(a) IN GENERAL.—Any covered provision of a non- 17 disclosure agreement that is entered into by a covered em- 18 ployee and an employing office shall be unenforceable 19 against that complainant covered employee. 20 ‘‘(b) COVERED PROVISION.—In this section, the term 21 ‘covered provision’ means a provision of a nondisclosure 22 agreement— 23 ‘‘(1) that is entered into after the date of enact- 24 ment of the Stop Silencing Victims Act; 25 VerDate Sep 11 2014 21:32 May 07, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1314.IS S1314 kjohnson on DSK79L0C42 with BILLS 6 •S 1314 IS ‘‘(2) that prohibits the disclosure of information 1 relating to an allegation or series of allegations that 2 could plausibly give rise to a valid claim of sex dis- 3 crimination; and 4 ‘‘(3) relating to material that is not otherwise 5 prohibited by law from being disclosed. 6 ‘‘(c) DEFENSE.—In any action or proceeding to en- 7 force a covered provision, a covered employee may raise 8 as a defense the unenforceability of a covered provision 9 of a nondisclosure agreement, as set forth in this section. 10 ‘‘(d) CONFIDENTIALITY.— 11 ‘‘(1) IN GENERAL.—Personally identifying in- 12 formation about a complainant covered employee 13 that would otherwise be held confidential in accord- 14 ance with a covered provision of a nondisclosure 15 agreement shall not be made public, unless the com- 16 plainant covered employee chooses to make that in- 17 formation public. 18 ‘‘(2) UNLAWFUL RETALIATION.—A violation of 19 the prohibition described in paragraph (1) may be 20 considered evidence of unlawful retaliation against 21 the complainant covered employee.’’. 22 VerDate Sep 11 2014 21:32 May 07, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1314.IS S1314 kjohnson on DSK79L0C42 with BILLS 7 •S 1314 IS SEC. 5. NONDISCLOSURE AGREEMENT UNENFORCEABLE 1 UNDER TITLE 3 OF THE UNITED STATES 2 CODE. 3 (a) IN GENERAL.—Chapter 5 of title 3, United 4 States Code, is amended by inserting after section 411 the 5 following: 6 ‘‘§ 411A. Nondisclosure agreement unenforceable. 7 ‘‘(a) IN GENERAL.—Any covered provision of a non- 8 disclosure agreement that is entered into by a covered em- 9 ployee and an employing office shall be unenforceable 10 against that complainant covered employee. 11 ‘‘(b) COVERED PROVISION.—In this section, the term 12 ‘covered provision’ means a provision of a nondisclosure 13 agreement— 14 ‘‘(1) that is entered into after the date of enact- 15 ment of the Stop Silencing Victims Act; 16 ‘‘(2) that prohibits the disclosure of information 17 relating to an allegation or series of allegations that 18 could plausibly give rise to a valid claim of sex dis- 19 crimination; and 20 ‘‘(3) relating to material that is not otherwise 21 prohibited by law from being disclosed. 22 ‘‘(c) DEFENSE.—In any action or proceeding to en- 23 force a covered provision, a covered employee may raise 24 as a defense the unenforceability of a covered provision 25 of a nondisclosure agreement, as set forth in this section. 26 VerDate Sep 11 2014 21:32 May 07, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1314.IS S1314 kjohnson on DSK79L0C42 with BILLS 8 •S 1314 IS ‘‘(d) CONFIDENTIALITY.— 1 ‘‘(1) IN GENERAL.—Personally identifying in- 2 formation about a complainant covered employee 3 that would otherwise be held confidential in accord- 4 ance with a covered provision of a nondisclosure 5 agreement shall not be made public, unless the com- 6 plainant covered employee chooses to make that in- 7 formation public. 8 ‘‘(2) UNLAWFUL RETALIATION.—A violation of 9 the prohibition described in paragraph (1) may be 10 considered evidence of unlawful retaliation against 11 the complainant covered employee.’’. 12 (b) CLERICAL AMENDMENT.—The table of sections 13 at the beginning of such chapter is amended by inserting 14 after the item relating to section 411 the following new 15 item: 16 ‘‘411A. Nondisclosure agreement unenforceable.’’. Æ VerDate Sep 11 2014 21:32 May 07, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\S1314.IS S1314 kjohnson on DSK79L0C42 with BILLS