Estimated reading time: 16 minutes

Key Takeaways

• Non-disclosure agreements (NDAs) cannot be used to silence lawful reporting of sexual harassment to the EEOC or law enforcement; those rights are protected by federal law and public policy.

• The federal Speak Out Act makes many predispute nondisclosure and nondisparagement clauses unenforceable for sexual assault and harassment claims, and many states add further protections.

• A “confidentiality agreement harassment carveout” is critical language that preserves an employee’s right to report unlawful conduct and cooperate with investigations despite confidentiality terms.

• Overbroad “silence agreement harassment” clauses are often void, particularly if they suppress evidence of criminal activity or bar cooperation with government agencies.

• If you’re presented with an NDA, insist on clear carveouts, seek legal review, preserve evidence, and file an EEOC charge if appropriate—an NDA cannot stop agency reporting.

Table of Contents

• Introduction

• What are NDAs and confidentiality agreements in sexual-harassment contexts?

• Enforceability — what the law currently says

• Can an NDA bar reporting sexual harassment to the EEOC?

• Understanding silence agreement harassment clauses and their limits

• How to challenge overbroad or unenforceable NDAs on sexual misconduct

• Waiving rights under an NDA — what that means and its limits

• Practical advice — what employees and employers should do

• Examples and short case summaries

• Conclusion

• FAQ

Introduction

Non‑disclosure agreements (NDAs) are contracts that limit the disclosure of specified confidential information; employers commonly use them to protect trade secrets, personnel records, and settlement terms. Workers often ask: Are NDAs sexual harassment enforceable? Another common concern is can NDA bar reporting to EEOC—can an NDA stop an employee from reporting sexual harassment to the EEOC or law enforcement?

In this guide, we explain enforceability, recent federal and state developments, and why a confidentiality agreement harassment carveout matters. We also cover how to challenge overbroad NDAs and practical steps for employees and employers. Congress expanded protections with the Speak Out Act, which limits enforcement of certain predispute secrecy clauses in sexual harassment and assault contexts—see this concise Speak Out Act overview and a complementary summary of federal changes affecting NDAs in harassment cases.

What are NDAs and confidentiality agreements in sexual-harassment contexts?

Define a non‑disclosure agreement (NDA) as a bilateral or unilateral contract where one or more parties agree not to disclose certain information described in the agreement. In workplaces, NDAs commonly cover trade secrets, proprietary business information, and sometimes personnel/disciplinary matters or settlement terms.

Not all clauses are equal. A silence agreement (also called a “gag” or “non‑disparagement” clause) seeks to prohibit an employee from speaking about alleged harassment or misconduct. Overbroad example to avoid: “Employee agrees not to disclose any facts, circumstances, or claims related to the harassment complaint to any third party.” Proper carveout example: “Notwithstanding the foregoing, Employee may report unlawful conduct to government agencies and may testify truthfully in any legal proceeding.”

A confidentiality agreement harassment carveout is explicit language within the NDA that preserves the employee’s right to report wrongdoing to government agencies, law enforcement, or to participate in investigations. These carveouts are crucial given concerns that secrecy provisions can impede reporting and “access to justice,” as examined in the Chicago Legal Forum’s analysis of NDAs’ impact on enforcement and accountability. Congress responded to these concerns with the Speak Out Act, limiting the enforcement of certain predispute nondisclosure and nondisparagement terms in sexual harassment and assault matters.

Enforceability — what the law currently says

The baseline legal principle is simple: contracts cannot lawfully require parties to give up rights protected by statute or clear public policy. NDAs are not above the law. They cannot override federal employee protections or block cooperation with government investigations into discrimination or crime.

The Speak Out Act (enacted December 2022) is key. It prohibits enforcement of certain pre‑dispute nondisclosure and nondisparagement clauses related to sexual assault and sexual harassment, meaning employers cannot use those clauses to stop an employee from speaking about or reporting sexual harassment. For details, see this plain‑English Speak Out Act overview. Importantly, the law targets predispute clauses (agreements made before an alleged incident or claim arises). It does not automatically render all post‑dispute settlement confidentiality terms invalid; if a worker knowingly and voluntarily agrees after the fact, some confidentiality may remain enforceable—yet not in ways that bar reporting crimes or cooperating with government agencies.

States also act in this area. Several states restrict NDAs in harassment and assault contexts beyond the federal baseline (for example, New York’s reforms). Because these rules vary, check local law and current guidance. For big‑picture context, consult the Chicago Legal Forum background on NDA limits and public policy and this summary of federal law banning certain NDAs in sexual harassment cases.

Court decisions reflect longstanding principles. Judges may refuse to enforce provisions that suppress evidence of criminal acts or that violate statutes guaranteeing the right to report, testify, or assist in legal proceedings. Public policy and illegality defenses can invalidate overbroad terms, particularly those that function as silence agreement harassment clauses. For case‑law illustrations and doctrinal trends, see the Chicago Legal Forum’s survey of NDA enforcement and its limits.

Can an NDA bar reporting sexual harassment to the EEOC?

Short answer: No — an NDA cannot lawfully prevent someone from reporting sexual harassment or discrimination to the EEOC or similar federal, state, or local agencies. This is a non‑waivable right rooted in federal anti‑discrimination laws and reinforced by the Speak Out Act and policy guidance.

Why? Federal law protects the right to file a charge with the EEOC, cooperate with agency investigations, and provide truthful testimony. Contracts cannot extinguish these public rights in advance. NDAs might limit certain public statements, but provisions that would bar reporting to an administrative agency or law enforcement are typically unenforceable. For updates and practical context, review the MehaffyWeber overview of federal changes affecting harassment NDAs.

Confidentiality terms in post‑dispute, negotiated settlements may be enforceable if entered knowingly and voluntarily; however, courts and statutes often disallow clauses that restrict cooperation with government investigations or disclosure of criminal conduct. Practically, if you are presented with an NDA, ask whether it includes an explicit carveout for reporting to agencies and for participating in investigations. If not, request one immediately.

If you are ready to report, follow the EEOC filing instructions. For broader step‑by‑step guidance on harassment claims, see our guide to suing for sexual harassment and this foundational workplace sexual harassment resource.

Understanding silence agreement harassment clauses and their limits

Overbreadth is the big red flag. Beware phrases like “all facts, allegations, statements, or circumstances related to any claim,” “not disclose to any person,” or “forbid reporting to any government agency.” These are signs that a clause operates as a silence agreement harassment provision.

Why is that a problem? Blanket bans on “any disclosure” can prevent legally protected reporting and are likely unenforceable under federal and state law and public policy. Clauses that prohibit reporting crimes, filing with the EEOC, or cooperating with government investigations collide with core legal protections. For public‑policy context and judicial outcomes, see the Chicago Legal Forum’s discussion of NDA overreach and access to justice and the Speak Out Act overview.

There is also a criminal‑conduct exception in principle: contracts cannot require concealment of crimes or obstruct justice. NDAs cannot lawfully prevent disclosure of criminal activity or block truthful cooperation with law enforcement. Overbroad provisions harm victims, hide patterns of abuse, and expose employers to legal penalties and reputational risk.

For additional practical reporting guidance, you may find our step-by-step hostile work environment reporting guide helpful.

How to challenge overbroad or unenforceable NDAs on sexual misconduct

Challenging an NDA involves legal review, preserving evidence, raising administrative complaints, and—if needed—going to court to declare the clause unenforceable. The goal is to protect your right to report and to stop retaliation or interference.

Step-by-step actions for employees

1. Preserve evidence immediately. Save emails, messages, photos, internal reports, dates, and witness names. Keep any versions of the NDA, drafts, and emails about it. Do not alter or delete anything.

2. Do not sign under coercion; if you did, record context. Note who pressured you, when, and what you were told. Coercion or unconscionability can undercut enforceability.

3. Request legal review. Consult an employment lawyer or legal aid. For background, share these resources with counsel: the Chicago Legal Forum analysis of NDA law and access to justice and this practical Speak Out Act overview. For broader harassment support, see our workplace harassment legal support guide.

4. File an administrative charge. File with the EEOC (or your state fair‑employment agency). The agency can investigate regardless of NDA language. Start with the official EEOC charge-filing page and learn the nuts and bolts in our EEOC complaint guide.

5. Notify government agencies or the state Attorney General if relevant. Some AGs or labor departments pursue companies using unlawful NDAs that deter reporting.

6. Seek injunctive relief if urgent. Ask a court for an order preventing the employer from enforcing an overbroad NDA or retaliating while your claims proceed. Injunctions can quickly neutralize unlawful gag clauses.

7. Consider public advocacy where appropriate. In high‑profile matters, advocacy groups and amicus briefs can support legal and public‑policy arguments.

Legal arguments commonly used to invalidate NDAs

• Public policy. Secrecy provisions that suppress statutory rights to report, testify, or file charges often violate public policy.

• Illegality. Provisions requiring concealment of criminal acts, obstruction, or false statements are void.

• Unconscionability or coercion. Clauses imposed under pressure without meaningful opportunity for counsel or negotiation may be invalid.

• Statutory preemption. Federal laws like the Speak Out Act and state statutes can override conflicting contract terms.

Sample carveout request language

Please amend the confidentiality clause to state: “Notwithstanding any provision to the contrary, nothing in this agreement prohibits or limits Employee from (a) reporting suspected unlawful conduct to, or participating in any investigation by, any governmental authority or law enforcement agency; (b) communicating with or providing documents to such agencies; or (c) making disclosures protected under whistleblower laws.”

Resources and next steps

• EEOC charge filing: official EEOC filing instructions.

• Legal background: Chicago Legal Forum analysis on NDAs and justice and the Speak Out Act overview.

• Harassment claims: see our practical sexual harassment rights guide and this step-by-step reporting resource.

If you need to challenge NDA sexual misconduct provisions and also negotiate severance terms, our severance agreement review guide explains common pitfalls and negotiation strategies.

Waiving rights under an NDA — what that means and its limits

A waiver is a voluntary relinquishment of a known right. In employment settlements, waivers can cover some claims—but there are limits, especially when it comes to reporting unlawful conduct.

Under federal law and many state laws, people generally cannot waive the right to report sexual harassment or discrimination to government agencies or law enforcement. Provisions purporting to do so are typically unenforceable, as reflected in both the Speak Out Act and public‑policy analyses like the Chicago Legal Forum review. In practice, if you see “waive rights NDA employer” asks you to surrender reporting or cooperation rights, it should be revised.

Problematic waiver example: “Employee waives all claims arising out of the conduct and shall not disclose any facts to third parties.” Safer alternative: “Employee does not waive, and this Agreement does not limit, Employee’s right to report alleged unlawful conduct to any governmental agency, to participate in agency investigations, or to pursue a claim in any court or before any administrative agency.”

When reviewing NDAs or settlement agreements, insist on a confidentiality agreement harassment carveout and ask for time to consult independent counsel. For broader NDA context (including business‑information NDAs), see our overview on employee NDAs and trade-secret issues.

Practical advice — what employees and employers should do

For employees

• Before signing, read the NDA fully. Flag any language that restricts reporting to the EEOC, law enforcement, or other government agencies.

• Ask for explicit carveouts preserving reporting, cooperation, and whistleblower rights (see the sample clause above). A clear confidentiality agreement harassment carveout is essential.

• Negotiate non‑retaliation protections and cooperation clauses to ensure you can participate in investigations without adverse action.

• Keep copies of all drafts, signed agreements, and related emails or texts. Document the timeline and any pressure tactics.

• If unsure, speak to an employment attorney or legal aid before signing. Learn how EEOC charges work from our EEOC filing guide and the official EEOC filing instructions.

For employers

• Include explicit carveouts for agency reporting, law‑enforcement cooperation, and whistleblower protections in all confidentiality agreements and settlements.

• Avoid gag provisions that bar reporting or participation in investigations; predispute clauses restricting harassment disclosures may be unenforceable under the Speak Out Act.

• Update templates to align with federal and state changes; conduct an annual legal review. For a quick overview, see this summary of federal limits on harassment NDAs.

• Adopt clear non‑retaliation policies and internal reporting pathways, and train managers on what employees are allowed to disclose.

• Use neutral wording: protect proprietary information while affirming that nothing in the agreement limits lawful reporting or cooperation.

Sample compliant NDA language

“Notwithstanding any other provision of this Agreement, nothing in this Agreement prohibits Employee from (i) reporting allegations of unlawful conduct to, or cooperating with, any governmental or law enforcement agency, (ii) participating in any investigation or proceeding conducted by such agencies, or (iii) making any disclosures that are protected under whistleblower statutes.”

Employees facing harassment can also review our practical coworker sexual harassment guide for evidence tips and reporting options.

Examples and short case summaries

Example 1 — Predispute NDA attempt. An employer’s onboarding packet included a broad nondisparagement clause barring discussion of “any allegations” of misconduct. After legal review and reference to the Speak Out Act, the clause was deemed unenforceable as to sexual harassment disclosures. The company revised its policies to add agency‑reporting carveouts.

Example 2 — Settlement confidentiality with carveout. An employee settled a harassment claim post‑dispute. The agreement included confidentiality but also explicit language preserving the right to file an EEOC charge and cooperate with any investigation. The employee later provided testimony to an agency without violating the agreement, illustrating how targeted carveouts protect public rights while resolving private disputes. For policy background, see the Chicago Legal Forum’s analysis of NDAs and access to justice.

Conclusion

• NDAs cannot lawfully bar employees from reporting sexual harassment to the EEOC or cooperating with investigations; see the Speak Out Act overview.

• The Speak Out Act and many state laws make predispute silence provisions unenforceable; employers should include explicit carveouts and employees should insist on them.

• If you face an overbroad NDA, preserve evidence, seek counsel, file an EEOC charge if appropriate, and consider asking a court to invalidate unlawful provisions. Helpful background: Speak Out Act summary, federal law overview on NDAs in harassment cases, and the Chicago Legal Forum’s analysis.

NDAs sexual harassment enforceable questions come up in nearly every harassment dispute. Before you sign, look for a strong carveout, confirm your right to file with the EEOC, and get independent legal advice. If you wonder “can NDA bar reporting to EEOC” or whether you can be asked to waive rights NDA employer terms, the answer is almost always no when it comes to agency reporting and cooperation.

Need help now? Get a free and instant case evaluation by US Employment Lawyers. See if your case qualifies within 30-seconds at https://usemploymentlawyers.com.

FAQ

Can my NDA legally stop me from reporting sexual harassment to the EEOC?

No. An NDA cannot prevent reporting to the EEOC or cooperating with investigations. Those rights are protected by federal law and reinforced by the Speak Out Act. If your agreement lacks a carveout, request one.

What are the biggest red flags in a silence agreement harassment clause?

Watch for blanket phrases like “all facts, allegations, statements, or circumstances,” prohibitions on disclosure to “any person,” or explicit bans on reporting to “any government agency.” Such provisions often violate public policy and are likely unenforceable.

Are post‑dispute settlement confidentiality terms always enforceable?

No. Some post‑dispute confidentiality terms may be enforceable if voluntarily agreed to, but not if they bar lawful reporting or cooperation with government investigations. Courts often invalidate clauses that suppress criminal reporting or agency cooperation. See the Chicago Legal Forum analysis.

What is a confidentiality agreement harassment carveout, and why do I need it?

It’s express language that preserves your right to report unlawful conduct to government agencies and law enforcement and to participate in investigations. Carveouts ensure NDAs do not silence legally protected disclosures. They also improve compliance with laws like the Speak Out Act.

How do I challenge an overbroad NDA related to sexual misconduct?

Preserve evidence, get legal review, file an EEOC charge, notify relevant agencies, and seek an injunction if necessary. Legal arguments include public policy, illegality, unconscionability, and statutory preemption. For how to start an EEOC case, see the EEOC filing instructions and our EEOC complaint guide.