In Savage v. Township of Neptune, 313 A.3d 65, 257 N.J. 204 (N.J. May 7, 2024), the New Jersey Supreme Court held that under the New Jersey Law Against Discrimination (LAD), the non-disparagement provision at issue was unenforceable against public policy.
From the decision:
In this appeal, we consider whether a “non-disparagement provision” in a settlement agreement can stop parties from revealing details relating to claims of discrimination, retaliation, or harassment.
Here, a sergeant filed a lawsuit that accused the police department where she worked, as well as others, of discrimination, retaliation, and sexual harassment. The parties ultimately entered into a settlement agreement that prevented both sides from mak[ing] any statements regarding the past behavior of the parties, which would tend to disparage or impugn the reputation of any party.
Afterward, a television reporter interviewed the sergeant, and she commented about the matter. Defendants then filed a motion to enforce the settlement agreement.
We find that the Law Against Discrimination (LAD) protects the sergeant’s statements. In particular, N.J.S.A. 10:5-12.8(a) (section 12.8), enacted in 2019 in the wake of the “#MeToo” movement, states that a provision in a settlement agreement that has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment shall be deemed against public policy and unenforceable.
Through those words, 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 from them 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. Defendants also used the agreement to try to hold the sergeant liable for making statements about her claims of discrimination, retaliation, and sexual harassment, which section 12.8 specifically protects. For those reasons, the non-disparagement clause in the agreement is against public policy and cannot be enforced.
[Citations, internal quotation marks, and ellipses omitted.]
In reaching this conclusion, the court cited the plain language of the statute, viewed through the lens of the principle that the LAD “is remedial legislation” that the court is required to liberally construe.