Sec. 302. Nondisclosure agreements

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In this section: The term Commission means the Equal Employment Opportunity Commission. The term covered establishment has the meaning given the term in section 301. The term covered individual means— in the case of an individual required to be afforded protections under section 301(a)— an individual required to be afforded those protections by an employer described in paragraph (5)(A); an individual required to be afforded those protections by an employer described in paragraph (5)(B); an individual required to be afforded those protections by an employer described in paragraph (5)(C); an individual required to be afforded those protections by an employer described in paragraph (5)(D); or an individual required to be afforded those protections by an employer described in paragraph (5)(E); and in the case of an individual required to be afforded protections under section 301(b) by a covered establishment, that individual.

The term employee means— an employee (including an applicant), as defined in section 701(f) of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e(f) ); a State employee (including an applicant) described in section 304(a) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16c(a)); a covered employee (including an applicant), as defined in section 101 of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 ), including an individual treated as a covered employee under that section; a covered employee (including an applicant), as defined in section 411(c) of title 3, United States Code; or an employee or applicant to which section 717(a) of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–16(a) ) applies.

The term employer means— an employer (as defined in section 701(b) of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e(b) )); an entity employing a State employee described in section 304(a) of the Government Employee Rights Act of 1991; an employing office, as defined in section 101(a) of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301(a) ); an employing office, as defined in section 411(c) of title 3, United States Code; or an entity to which section 717(a) of the Civil Rights Act of 1964 applies.

The term nondisclosure clause means a provision in a contract or agreement establishing that each party to the contract or agreement agrees not to disclose information covered by the terms and conditions of the contract or agreement. The term nondisparagement clause means a provision in a contract or agreement requiring one or more parties to the contract or agreement not to make negative statements about another such party. The term worker means an employee or a covered individual.

Subject to paragraph (3), it shall be an unlawful practice for an employer to enter into a contract or agreement with a worker, or for a covered establishment to enter into a contract or agreement with a covered individual, as a condition of employment or contracting, promotion, compensation, benefits, or change in employment status or contractual relationship, or as a term, condition, or privilege of employment or contracting, if that contract or agreement contains a nondisparagement clause or nondisclosure clause that covers prohibited discrimination or harassment in employment or contracting, or retaliation for reporting, resisting, opposing, or assisting in the investigation of such discrimination or harassment.

Subject to paragraph

(3)but notwithstanding any other provision of law, it shall be an unlawful practice for an employer or covered establishment to enforce or attempt to enforce a nondisparagement clause or nondisclosure clause that covers prohibited discrimination or harassment in employment or contracting, or retaliation for reporting, resisting, opposing, or assisting in the investigation of such discrimination or harassment. An employer or covered establishment that enforces or attempts to enforce such a nondisparagement clause or such a nondisclosure clause against a worker shall be liable for the reasonable attorney’s fees and costs of the worker. The provisions of paragraphs

(1)and

(2)do not apply to a nondisparagement clause or nondisclosure clause contained in a settlement agreement or separation agreement that resolves legal claims or disputes if— such legal claims accrued or such disputes arose before the settlement agreement or separation agreement was executed; the clause involved is mutually agreed upon by and mutually benefits both— the employer or covered establishment, as the case may be; and the worker; the worker's agreement to such clause is knowing and voluntary, as described in subparagraph (C); and the settlement agreement or separation agreement expressly states that the agreement involved does not prohibit, prevent, or otherwise restrict a worker from— filing a complaint with the Commission, any other Federal, State, or local agency with the authority to enforce laws (including regulations) that prohibit discrimination or harassment in employment or contracting, as the case may be, or law enforcement; testifying at, assisting, or participating in an investigation or proceeding conducted by the Commission, any other Federal, State, or local agency with the authority to enforce laws (including regulations) that prohibit discrimination or harassment in employment or contracting, as the case may be, or law enforcement; or testifying in a hearing or trial or complying with a request for discovery in relation to civil litigation. For purposes of this paragraph, it shall be an unlawful practice for an employer or covered establishment to unilaterally include a nondisparagement clause or nondisclosure clause that solely benefits the employer or covered establishment in a separation or settlement agreement. For purposes of this paragraph, agreement to a nondisparagement clause or nondisclosure clause may not be considered knowing and voluntary unless at a minimum— the nondisparagement clause or nondisclosure clause is written in a manner designed to ensure that the worker understands the content of the clause involved; the nondisparagement clause or nondisclosure clause is included only in exchange for consideration of value provided to the worker, in addition to anything of value to which the worker is already entitled; the nondisparagement clause or nondisclosure clause does not apply to any rights or claims that arise after the date the settlement or separation agreement is executed; the worker is advised in writing to consult with an attorney prior to agreeing to such an agreement that includes a nondisparagement clause or nondisclosure clause; the worker is given a period of at least 21 days to consider any proposal for a settlement or separation agreement that includes a nondisparagement clause or nondisclosure clause; and the settlement or separation agreement provides that for a period of at least 7 days following the execution of such agreement the worker may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired. In any dispute that may arise over whether any of the requirements of subparagraph

(A)have been met, the party asserting the validity of an agreement shall have the burden of proving that the requirements of subparagraph

(A)have been met. No nondisparagement clause or nondisclosure clause may affect the ability of a worker to testify at, assist, or participate in an investigation or proceeding conducted by the Commission, any Federal, State, or local agency with the authority to enforce laws (including regulations) that prohibit discrimination in employment or contracting, as the case may be, or a law enforcement agency. Under no circumstances shall a worker be required to pay damages for breach of a nondisparagement clause or nondisclosure clause permitted by this paragraph in excess of an amount equal to the consideration of value provided to the worker in exchange for the workers’ agreement to the nondisparagement clause or nondisclosure clause. With respect to the administration and enforcement of this section in the case of a claim alleged by a worker against an employer 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 an employee of the employer 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 an employee of the employer for a violation of such title; the Board (as defined in section 101(a) of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301(a) )) 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 an employee of the employer 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 an employee of the employer 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 an employee of the employer for a violation of section 411 of such title; 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 an employee of the employer for a violation of such title; 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 an employee of the employer 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 an employee of the employer 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 an employee of the employer for a violation of section 411 of such title. The procedures and remedies applicable to a claim alleged by a worker against the employer 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 an employee of the employer for a violation of such title; 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 an employee of the employer 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 an employee of the employer 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 an employee of the employer for a violation of such section. With respect to a claim alleged by an employee described in subsection (a)(4)(C) or a covered individual described in subsection (a)(3)(A)(iii) 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 an employee for a violation of section 201(a)(1) of such Act ( 2 U.S.C. 1311(a)(1) ). With respect to the administration and enforcement of this section in the case of a claim alleged by a covered individual against a covered establishment 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.); 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; 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, in the case of a claim alleged by an employee described in subsection (a)(4)(A) for a violation of such title. The procedures and remedies applicable to a claim alleged by a covered individual against the covered establishment 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 an employee described in subsection (a)(4)(A) for a violation of such title. Notwithstanding signing (before, on, or after the effective date of this Act) any nondisparagement clause or nondisclosure clause, a worker retains— any right that person would otherwise have had to report a concern about harassment, including sexual harassment, in employment or contracting 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 other 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. 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 workers of the Library of Congress. The Board referred to in subsection (c)(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 employees described in subsection (a)(4)(C) and covered individuals described in subsection (a)(3)(A)(iii). The President shall have authority to issue regulations to carry out this section with respect to employees described in subsection (a)(4)(D) and covered individuals described in subsection (a)(3)(A)(iv). 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 a covered individual in that program or activity under this section for a remedy authorized under paragraph (4). In this subparagraph, 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 a covered individual who has complied with the applicable procedures of subsection (c), 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 Act, 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 an employer described in subsection (a)(5)(A), 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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