Can an NDA or Settlement Silence You About Sexual Harassment? California Law

Many people who have been sexually harassed at work believe that once they sign a settlement or a severance agreement with a confidentiality clause, they can never speak about what happened to them — not to a reporter, not on social media, sometimes not even to a friend. Employers often want them to believe that. In California, it is frequently not true. State law has changed dramatically, and workers now have strong, specific rights to speak out about harassment even after signing.

If you have been asked to sign — or already signed — an agreement about workplace harassment, a confidential review can tell you what you are actually allowed to say. Call Bluestone Law at (310) 363-0975.

The Short Answer

In California, an employer generally cannot use an NDA, settlement, severance agreement, or non-disparagement clause to stop you from disclosing the facts of sexual harassment, discrimination, or retaliation you experienced or witnessed at work. Two laws changed the landscape: the STAND Act and the Silenced No More Act. A clause that tries to gag you about unlawful conduct is often unenforceable — and in some cases its mere inclusion can be a problem for the employer.

California’s Two Key Laws

The STAND Act (SB 820, effective 2019)

The Stand Together Against Non-Disclosure (STAND) Act put an end to secret settlements in cases of sexual harassment and sex-based discrimination or retaliation. When a claim of that kind has been filed, a settlement agreement generally may not contain a provision preventing the disclosure of the underlying facts. The idea behind the law was simple: confidential settlements had allowed serial harassers to move from job to job while their conduct stayed hidden.

The Silenced No More Act (SB 331, effective January 1, 2022)

The Silenced No More Act went much further. It extended those protections beyond sex-based conduct to all forms of workplace harassment, discrimination, and retaliation covered by California law — including harassment based on race, age, disability, religion, national origin, and other protected characteristics. Critically, it also reached into severance and separation agreements, not just litigation settlements. Under this law, a non-disparagement or confidentiality provision in an employment or separation agreement generally cannot be used to prevent an employee from discussing conduct they have reason to believe is unlawful. The law also requires that a separation agreement give you at least five business days to consider it and consult an attorney.

What the Statutes Actually Say

Which rule protects you depends on what you are being asked to sign. California spreads these protections across several code sections. Here is where each one applies:

The sentence your agreement must contain

If a severance agreement, or any agreement you sign as a condition of your job, includes a confidentiality or non-disparagement clause, California requires language to this effect:

“Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”

If that sentence is missing, it is not a technicality. Raise it before you sign. The five-business-day review period belongs to you, not your employer: you may choose to sign sooner, but no one can require you to.

What This Means for You in Practice

• You can usually still describe what happened. A confidentiality clause generally cannot stop you from disclosing the facts of harassment, discrimination, or retaliation.
• The settlement amount can still be kept private. California law lets the dollar figure remain confidential — and, importantly, an employee may request that their own identity and the facts be kept private. The protection exists for the worker’s benefit, not the employer’s.
• Non-disparagement clauses have limits. A separation agreement can ask you not to trash-talk the company generally, but under the Silenced No More Act it typically cannot bar you from discussing unlawful acts in the workplace.
• Required language. For agreements covered by the Silenced No More Act, California requires specific notice that you retain the right to discuss unlawful conduct. Its absence is a red flag.

What an Unlawful “Silence” Clause Can Look Like

These provisions are not always labeled “NDA.” Watch for language that:

• Prohibits you from disclosing the “facts,” “circumstances,” or “existence” of your complaint or claim;
• Bars you from making any “disparaging” or “negative” statements about the company without carving out unlawful conduct;
• Requires you to say you were never harassed or discriminated against;
• Threatens to claw back your settlement or severance if you speak about what happened.

Depending on the circumstances, provisions like these may be void or unenforceable under California law.

Already Signed Something? It May Not Bind You the Way You Think

If you have already signed a settlement or severance agreement, do not assume the confidentiality language is valid. A clause that violates the STAND Act or the Silenced No More Act may be unenforceable even though you signed it — you generally cannot be forced to keep quiet about unlawful conduct by an agreement that state law prohibits. Before you either stay silent out of fear or speak publicly and risk a dispute, it is worth having the specific language reviewed. For a broader checklist on these agreements, see Should You Sign a Severance Agreement in California?

Why This Matters Before You Settle

These rights are also leverage. Because California limits what an employer can buy with a settlement, the value of your claim is not just the check — it is the accountability. Understanding what you can and cannot be asked to give up helps you evaluate an offer properly. For how harassment cases are actually valued, see sexual harassment settlement amounts in California, and learn more about your underlying rights on our California sexual harassment page.

Why Employers Push for Confidentiality, and What They Can Still Get

Bluestone Law’s founding attorney previously defended employers in California employment cases. From that side of the table, confidentiality is rarely boilerplate. Employers usually want three things: the settlement amount kept private, no public accusations, and nothing that invites the next claim. California still allows the first, allows a properly limited version of the second, and has sharply limited any employer’s ability to buy your silence about what actually happened.

There is also a federal tax cost. Under 26 U.S.C. § 162(q), an employer cannot deduct a sexual harassment settlement, or the attorney’s fees tied to it, if the payment is subject to a nondisclosure agreement. When an employer insists on confidentiality anyway, it is giving something up to get it. That makes confidentiality a term you can negotiate, not one you simply accept.

How Bluestone Law Helps

We review harassment settlements and severance agreements for California employees, explain in plain language what you are actually allowed to say, and flag any clause that overreaches under state law. Where there is a claim worth pursuing, we work on contingency — no fee unless we win. The initial consultation is free and confidential, and we serve Spanish-speaking clients in Spanish.

Have an agreement in front of you, or already signed one? Talk to a California agreement-review attorney first. Call (310) 363-0975.

Frequently Asked Questions

This page is for general information and is not legal advice, and it does not create an attorney-client relationship. California laws change and apply differently to different situations; consult an attorney about your specific agreement. Every case is different; prior results do not guarantee a similar outcome.