Sec. 103. Prohibiting nondisparagement and nondisclosure clauses that cover workplace harassment, including sexual harassment

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Subject to subsection (b)(1), it shall be an unlawful practice for an employer to enter into a contract or agreement with an employee or applicant, as a condition of employment, promotion, compensation, benefits, or change in employment status or contractual relationship, or as a term, condition, or privilege of employment, if that contract or agreement contains a nondisparagement or nondisclosure clause that covers workplace harassment, including sexual harassment or retaliation for reporting, resisting, opposing, or assisting in the investigation of workplace harassment.

Notwithstanding any other provision of law, it shall be an unlawful practice and otherwise unlawful for an employer to enforce or attempt to enforce a nondisparagement clause or nondisclosure clause described in paragraph (1). The provisions of subsection

(a)do not apply to a nondisclosure clause or nondisparagement clause contained in a settlement agreement or separation agreement that resolves legal claims or disputes when— such legal claims accrued or such disputes arose before the settlement agreement or separation agreement was executed; and such clauses are mutually agreed upon and mutually benefit both the employer and employee. It shall be an unlawful practice for an employer to unilaterally include a nondisclosure clause or a nondisparagement clause that solely benefits the employer in a separation or settlement agreement. Notwithstanding signing (before or after the effective date of this title) any nondisparagement or nondisclosure clause including a clause referred to in subsection (a)(1), an employee or applicant retains any right that person would otherwise have had to report a concern about workplace harassment, including sexual harassment or another violation of the law to the Commission, another Federal agency (including an office of the legislative or judicial branch), a State or local fair employment practices agency or any State or local agency, or a law enforcement agency, and any right that person would otherwise have had to bring an action in a court of the United States. With respect to the administration and enforcement of this section in the case of a claim alleged by an employee for a violation of this section— the Commission shall have the same powers as the Commission has to administer and enforce— title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq.); or sections 302 and 304 of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b and 2000e–16c), in the case of a claim alleged by such employee for a violation of such title, or of section 302(a)(1) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b(a)(1)), respectively; the Librarian of Congress shall have the same powers as the Librarian of Congress has to administer and enforce title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq.) in the case of a claim alleged by such employee for a violation of such title; the Board (as defined in section 101 of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 )) shall have the same powers as the Board has to administer and enforce the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 et seq.) in the case of a claim alleged by such employee for a violation of section 201(a)(1) of such Act ( 2 U.S.C. 1311(a)(1) ); the Attorney General shall have the same powers as the Attorney General has to administer and enforce— title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq.); or sections 302 and 304 of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b and 2000e–16c), in the case of a claim alleged by such employee for a violation of such title, or of section 302(a)(1) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b(a)(1)), respectively; the President, the Commission, and the Merit Systems Protection Board shall have the same powers as the President, the Commission, and the Board, respectively, have to administer and enforce chapter 5 of title 3, United States Code, in the case of a claim alleged by such employee for a violation of section 411 of such title; the Commission shall have the same powers as described in subparagraph

(A)to administer and enforce a claim by any employee who is not otherwise able to seek remedy for a claim through an enforcement entity described in subparagraph

(A)through (E); and a court of the United States shall have the same jurisdiction and powers as the court has to enforce— title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq.) in the case of a claim alleged by such employee for a violation of such title or in the case of a claim described in subparagraph (F); sections 302 and 304 of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b and 2000e–16c) in the case of a claim alleged by such employee for a violation of section 302(a)(1) of such Act (42 U.S.C. 2000e–16b(a)(1)); the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 et seq.) in the case of a claim alleged by such employee for a violation of section 201(a)(1) of such Act ( 2 U.S.C. 1311(a)(1) ); and chapter 5 of title 3, United States Code, in the case of a claim alleged by such employee for a violation of section 411 of such title. The procedures and remedies applicable to a claim alleged by an employee for a violation of this section are— the procedures and remedies applicable for a violation of title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq.) in the case of a claim alleged by such employee for a violation of such title or in the case of a claim described in paragraph (1)(F); the procedures and remedies applicable for a violation of section 302(a)(1) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16b(a)(1)) in the case of a claim alleged by such employee for a violation of such section; the procedures and remedies applicable for a violation of section 201(a)(1) of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1311(a)(1) ) in the case of a claim alleged by such employee for a violation of such section; and the procedures and remedies applicable for a violation of section 411 of title 3, United States Code, in the case of a claim alleged by such employee for a violation of such section. With respect to a claim alleged by a covered employee (as defined in section 101 of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 )) for a violation of this section, title III of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1381 et seq.) shall apply in the same manner as such title applies with respect to a claim alleged by such a covered employee for a violation of section 201(a)(1) of such Act ( 2 U.S.C. 1311(a)(1) ). Except as provided in paragraphs (2), (3), and (4), the Commission shall have authority to issue regulations to carry out this section. The Librarian of Congress shall have authority to issue regulations to carry out this section with respect to employees and applicants for employment of the Library of Congress. The Board referred to in subsection (d)(1)(C) shall have authority to issue regulations to carry out this section, in accordance with section 304 of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1384 ), with respect to covered employees, as defined in section 101 of such Act ( 2 U.S.C. 1301 ). The President shall have authority to issue regulations to carry out this section with respect to covered employees, as defined in section 411(c) of title 3, United States Code, and applicants for employment as such employees. A State shall not be immune under the 11th Amendment to the Constitution from a suit brought in a Federal court of competent jurisdiction for a violation of this section. A State’s receipt or use of Federal financial assistance for any program or activity of a State shall constitute a waiver of sovereign immunity, under the 11th Amendment to the Constitution or otherwise, to a suit brought by an employee or applicant for employment of that program or activity under this section for a remedy authorized under subsection (d). In this paragraph, the term program or activity has the meaning given the term in section 606 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000d–4a ). With respect to a particular program or activity, subparagraph

(A)applies to conduct occurring on or after the day, after the date of enactment of this Act, on which a State first receives or uses Federal financial assistance for that program or activity. An official of a State may be sued in the official capacity of the official by any employee or applicant for employment who has complied with the applicable procedures of subsection (d), for equitable relief that is authorized under this section. In such a suit the court may award to the prevailing party those costs authorized by section 722 of the Revised Statutes ( 42 U.S.C. 1988 ). Notwithstanding any other provision of this title, in an action or administrative proceeding against the United States or a State for a violation of this section, remedies (including remedies at law and in equity, and interest) are available for the violation to the same extent as the remedies are available for a violation of title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq.) by a private entity, except that— punitive damages are not available; and compensatory damages are available to the extent specified in section 1977A(b) of the Revised Statutes ( 42 U.S.C. 1981a(b) ).

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