Through N.J.S.A. 10:5-12.8(a), a section of the LAD that was enacted in
the wake of the “#MeToo movement,” the Legislature removed barriers that
previously made it difficult for individuals to report abuse. Survivors of
discrimination, retaliation, and harassment now have a legal right to tell
their story -- a right that cannot be taken away by a settlement agreement.
Because the scope of the agreement in this case would bar individuals from
describing an employer’s discriminatory conduct, the agreement
encompasses speech the LAD protects. The non-disparagement clause in
the agreement is against public policy and cannot be enforced.
1. N.J.S.A. 10:5-12.8(a) provides in part that “[a] provision in any
employment contract or settlement agreement which has the purpose or
effect of concealing the details relating to a claim of discrimination,
retaliation, or harassment (hereinafter referred to as a “non-disclosure
provision”) shall be deemed against public policy and unenforceable
against a current or former employee.” The law’s shorthand reference -- the
phrase “non-disclosure provision” -- plainly draws its meaning from the
words it refers back to, not from outside sources like Black’s Law
Dictionary. When the Legislature sets out to define a specific term, as it did
here, courts are bound by that definition. As a result, labels like “nondisclosure,”
which is in the text, or “non-disparagement,” which is not, do
not control the meaning of section 12.8. The operative terms of N.J.S.A.
10:5-12.8(a) ask whether a provision in an employment contract or a
settlement agreement “has the purpose or effect of concealing the details
relating to a claim of discrimination, retaliation, or harassment.” If it does,
the agreement is “against public policy and unenforceable even if the
details relating to a claim disparage an employer. (pp. 14-16)
2. The law’s structure reinforces the conclusion that it encompasses
“non disparagement” provisions that would conceal details about
discrimination claims. Subsection (c) of N.J.S.A. 10:5-12.8 expressly
exempts particular types of clauses that might otherwise be barred by the
plain language of (a), and the Legislature could have exempted non-disparagement
agreements as well. But it did not. Certain language in
section 12.8 -- the use of “relating to” and “a” in the phrase “relating to a
claim of discrimination” -- also support a broad reading of the statute. And
the Court explains how the statute’s legislative history, though not needed
to understand section 12.8’s clear language, reinforces the law’s plain
meaning. (pp. 16-20)
3. Paragraph 10 of the settlement agreement uses expansive language that
encompasses speech about claims of discrimination, retaliation, and
harassment. The scope of the agreement -- barring all statements that would
tend to disparage a person -- is quite broad. It would prevent employees
from revealing information that lies at the core of what section 12.8
protects -- details about claims of discrimination. In that way, the
agreement directly conflicts with the LAD. The carveout at the end of
paragraph 10 does not save the agreement. The last sentence states that
“testimony or statements of Plaintiff related to other proceedings including
lawsuits” is not precluded. Section 12.8’s protections, however, extend
beyond statements made in pleadings or courtrooms. Survivors of
discrimination and harassment have the right to speak about their
experiences in any number of ways, and they can no longer be restrained by
confidentiality provisions in employment contracts or settlement
agreements. (pp. 21-22)
4. The Court reviews defendants’ specific objections to comments Savage
made in a television interview. All of the challenged comments are
protected under section 12.8, but paragraph 10 of the settlement agreement,
if enforced, would have the effect of preventing Savage from making any of
them. The non-disparagement clause in the settlement agreement conflicts
with the LAD in that it encompasses and would bar speech the statute
protects. It has the effect of concealing details relating to claims of
discrimination, retaliation, and harassment, which is directly contrary to the
LAD, and it is therefore against public policy and unenforceable. (pp. 22-
25)
5. The Court provides guidance for remand and explains that it upholds the
Appellate Division’s conclusion that defendants are not entitled to
attorney’s fees and costs, albeit for different reasons. (pp. 25-26)