Image showing how executives may feel silenced due to their NDA

Can an NDA Prohibit Discrimination Claims?

After signing a non-disclosure agreement (NDA) can you still file a discrimination claim? While NDAs may appear to seal your lips regarding matters at work, this is not necessarily the case.

At Gardner Employment Law, we thoroughly examine NDAs to inform our clients of their rights in the workplace. If you need a legal expert to determine whether your NDA is enforceable, give us a call.

How Far Does an NDA Reach to Silence Employees?

As we discuss in “Non-Disclosure Agreement Lawyer,” a non-disclosure agreement is a contract designed to protect a company’s confidential information or trade secrets disclosed to an employee. NDAs usually are presented for signature during the hiring process. While NDAs have a legitimate purpose to protect a company’s trade secrets, they cannot prevent an employee from cooperating with a government agency, whether it is for purposes of whistleblowing, reporting harassment, or filing charges of discrimination.

Some agreements labeled as “non-disclosure” agreements go even farther.  Some contracts contain a “non-disparagement provision.” According to Harvard Business Review, this provision goes beyond protecting confidential information and “requires employees to never speak negatively about their employer or former employer.”

Can I Still File My Discrimination Case After Signing an NDA?

Certain provisions within NDAs, especially a non-disparagement clause, may appear to prevent employees from revealing illicit activity or discrimination at work. In the case Equal Employment Opportunity Commission v. Astra USA, the court held that Title VII of the Civil Rights Act prevents employers from interfering with the EEOC’s ability to investigate charges of discrimination and that any agreement which prohibits or interferes with an employee’s communication with the EEOC is void as a matter of public policy.  In short, a contract does not override federal and state laws that protect employees from discrimination.

A Pinterest employee, Ifeoma Ozoma, spearheaded a movement that led to the enactment of a new law in California in October 2021. As explained in the New York Times, Ms. Ozoma, a Yale-educated daughter of Nigerian immigrants, helped inspire and pass the new California law, the Silenced No More Act. This law prohibits California companies from using nondisclosure agreements to squelch workers who speak up against discrimination in any form.

Ms. Ozoma and a colleague, Aerica Shimizu Banks, publicly accused their former employer, Pinterest, on Twitter of racism and sexism. Pinterest initially denied the allegations but later apologized for its workplace culture.  Its workers staged a walkout, and a former executive sued the company over gender discrimination. By speaking out, Ms. Ozoma and Ms. Banks took a risk. That’s because they broke the nondisclosure agreements they had signed with Pinterest when they left the company.  But their actions led to helping others speak out without fear of retribution.

Unfortunately, no such law currently exists in Texas. Employees must be cautious in social media posts. While you may speak freely with governmental agencies such as the EEOC while they investigate your charge of discrimination, you could face consequences if you post about it on social media.

What Should I Know Before Signing an NDA?

A non-disclosure agreement can have major consequences if you do not take the time to read it carefully. I had a client who was told that he must sign a “standard NDA” with a company before finalizing a business deal. Within this “standard NDA” was a provision that would have required my client to turn over all his rights to a new device to be used in the project. After realizing the effect of the agreement, my client requested the company to delete that particular section. The company refused, which ended the deal. But my client did not give up the rights to one of his primary assets.

Let this example serve as a lesson to always read the fine print. Never sign an NDA without first consulting an experienced contract attorney. It is possible that the agreement contains more than just protecting the company’s confidential information.

Contact Us

At Gardner Employment Law, we are skilled at examining non-disclosure agreements. We help our clients understand what they are promising before they sign. If you have an NDA and want to make sure you can still file a discrimination claim, contact us today.

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