Victims of discrimination, retaliation, and harassment face a challenging road to justice, but a ruling by the New Jersey Supreme Court just removed a significant hurdle that many had faced. The court ruled that non-disparagement provisions in settlement agreements are against public policy and cannot be enforced.

The decision followed the years-long legal journey of a former Neptune Township police officer. Christine Savage filed a lawsuit against the police department, Neptune Township, and named individuals for sexual harassment, sex discrimination, and retaliation in December 2013. That claim was resolved by a settlement agreement in 2014, and Savage filed a second suit in 2016 that accused the same defendants of having violated the settlement agreement and engaging in continuing, and “intensified” sex discrimination, harassment, and retaliation.

In 2020, the parties entered into a second settlement agreement, which contained a clause prohibiting either party from making or causing anyone else to make statements “regarding the past behavior of the parties” that would “tend to disparage or impugn the reputation of any party.” The settlement went on to define what was covered by the non-disparagement provision.

Later that year, Ms. Savage was interviewed for a television news show. During that interview, there were several comments made that the defendants viewed as a violation of the non-disparagement provision, including Ms. Savage saying, “You abused me for about eight years” and the interviewer saying, “Savage says the harassment and retaliation intensified with bogus disciplinary charges.” The police department, the township, and other named parties filed a motion to enforce the second settlement agreement, and their motion was granted based on the New Jersey Law Against Discrimination’s omission of non-disparagement in their policy barring non-disclosure and confidentiality agreements. The Appellate Division affirmed that decision, and Ms. Savage then filed an appeal to the state Supreme Court, which overturned the trial court and Appellate court’s decisions.

In its ruling, the New Jersey Supreme Court noted that the section of the state’s Law Against Discrimination was enacted to ensure that survivors of discrimination, retaliation, and harassment had the legal right to tell their story, regardless of the terms of any settlement agreement. Accordingly, they determined that non-disparagement clauses were against public policy and could not be enforced, just as is true of any non-disclosure or confidentiality terms that might be included in a settlement agreement.

The high court took the time to closely examine the language of N.J.S.A. 10:5-12.8(a), which explicitly states that any provision in an employment contract or settlement agreement that “has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment” is “against public policy and unenforceable even if the details relating to a claim disparage an employer. The justices determined that labels like “non-disclosure” or “non-disparagement” do not control the meaning of the policy as much as the answer to the question about its purpose.

Concerning the specific case and the police department and township’s argument, the justices point out that the non-disparagement clause in the settlement agreement would bar the speech protected by the statute and have the effect of concealing details relating to claims of discrimination, retaliation, and harassment in direct contradiction of the LAD. The justices also ordered that the defendants in the case were not entitled to attorney’s fees and costs.

This decision by the New Jersey Supreme Court is another example of the many protections that the state provides against discrimination or harassment in the workplace. If you have concerns that you’d like to discuss, contact Schorr & Associates today to set up a time for us to address the specifics of your circumstances.