Can an NDA stop me from discussing workplace discrimination in Ohio?

Can an NDA stop me from discussing workplace discrimination in Ohio?

No. An NDA cannot legally prevent you from reporting workplace discrimination to government agencies like the Equal Employment Opportunity Commission (EEOC) or the Ohio Civil Rights Commission (OCRC). Federal law, specifically the Speak Out Act, renders NDAs unenforceable regarding sexual harassment and assault claims.

The Legal Landscape of NDAs in Ohio

While employers in Ohio often use Non-Disclosure Agreements (NDAs) to protect trade secrets and proprietary information, they cannot use these contracts to silence victims of illegal discrimination. The law distinguishes between protecting business interests and suppressing evidence of unlawful conduct.

Federal Protections

• The Speak Out Act: Signed into law in 2022, this federal statute invalidates NDAs that were signed before a dispute arose if they attempt to prevent the disclosure of sexual assault or sexual harassment.
• EEOC Enforcement: The EEOC maintains that any agreement that restricts an employee's right to file a charge of discrimination or participate in an agency investigation is void as a matter of public policy.
• NLRB Guidance: The National Labor Relations Board has ruled that overly broad non-disparagement clauses—which often appear in NDAs—violate the National Labor Relations Act by chilling employees' rights to discuss working conditions.

Key takeaway: No contract can override your statutory right to cooperate with a government investigation. If an NDA attempts to waive your right to report discrimination, that specific provision is likely void.

Action Item: Review your employment contract for "severability" clauses. If a court finds one part of your NDA illegal, a severability clause ensures the rest of the contract remains intact while the illegal portion is struck down.

Comparing Restrictive Covenants

Red Flags in Your Employment Agreement

If you are reviewing a severance agreement or an existing NDA, look for these specific red flags that suggest an employer is attempting to overreach:

• Broad "Catch-all" Language: Phrases like "employee agrees not to discuss any aspect of their employment" are often considered too broad to be enforceable.
• Financial Penalties: Clauses that threaten to claw back severance pay if you speak to an attorney or government agency are highly suspect.
• Lack of Carve-outs: A valid agreement should explicitly state that it does not prohibit you from reporting violations of law to the EEOC, OCRC, or other regulatory bodies.

Action Item: If you see a clause that requires you to notify the company before speaking to a government agency, consult an attorney. This is often a tactic to intimidate employees into silence.

Steps to Take if You Are Being Silenced

1. Preserve Documentation: Keep a copy of the NDA and any communications where the employer threatens legal action for discussing your work environment.
2. Do Not Sign Under Duress: If you are presented with a severance agreement, you are generally entitled to a review period (often 21 days under the Older Workers Benefit Protection Act if you are over 40).
3. Consult Counsel: Before signing, ensure the agreement does not contain "release of claims" language that inadvertently waives your right to pursue a discrimination lawsuit.
4. File with the OCRC/EEOC: If you have already been discriminated against, filing a formal charge is a protected activity that an NDA cannot legally stop.

Key takeaway: Employers often rely on the "chilling effect" of an NDA. They know that if they threaten you with a lawsuit, you may stay silent even if the NDA is legally unenforceable.

Action Item: If you feel you have been retaliated against for discussing discrimination, document every instance of that retaliation, as this may form the basis of a separate legal claim.

How TermScore Simplifies Contract Analysis

Navigating the intersection of contract law and civil rights is complex. TermScore uses advanced AI to instantly scan your employment agreements for restrictive covenants, overbroad non-disparagement clauses, and illegal waivers of your rights. By identifying these red flags in seconds, TermScore empowers you to understand your legal standing before you sign or speak out. Ensure your rights are protected by letting TermScore analyze your contracts for hidden risks today.