Sexual Harassment and Confidentiality Agreements: What's Legal in NJ?

When an employee faces sexual harassment at work, the road to resolution can be emotional, complicated — and often confidential. Confidentiality agreements, also known as non-disclosure provisions, are sometimes used by employers in settlements to keep harassment claims quiet. But that doesn’t always sit well with public policy… or with the law.

New Jersey passed new protections to ensure that confidentiality isn't used to cover up wrongdoing or discourage others from speaking out in today’s environment, where sexual harassment can happen in remote workplaces just as likely as it happens in your office.

In this article, we break down confidentiality agreements in NJ in the context of sexual harassment claims, what rights employees have, and what employers can (and cannot) legally require.

What Is a Confidentiality Agreement?

A confidentiality agreement is a contract that limits what you can say about your employment experience. In the workplace, it’s often part of:

• A severance package
• A settlement agreement after a legal complaint
• An employment contract at the time of hire

These agreements may prevent employees from discussing:

• The terms of the settlement
• Details about their termination
• Allegations of workplace harassment or misconduct

On the surface, this can seem fair: employers want to protect their reputation, and employees might prefer privacy. But when these clauses silence workers who’ve been harassed, they can cross a legal line.

How NJ Law Has Changed in Response

A landmark law — N.J.S.A. 10:5-12.8 — is part of an amendment to the New Jersey Law Against Discrimination (NJLAD). This law specifically targets the misuse of confidentiality clauses in harassment, discrimination, and retaliation cases.

Here’s what the law says:

Any provision in an agreement that has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment is unenforceable against the employee.

Even if you sign a confidentiality clause (sometimes referred to as an NDA in sexual harassment cases), you can still talk about your experience with harassment: the company cannot legally punish you for that.

What This Means for Sexual Harassment Cases

Sexual harassment is considered unlawful discrimination under the NJLAD. Any confidentiality agreement that attempts to silence a victim — whether through a lawsuit, settlement, or severance — must meet specific legal standards. If an employer ignores sexual harassment reports and then tries to cover it up with a confidentiality clause, they could be violating both the spirit and letter of the law.

In simple terms:

• You can’t be forced into silence about sexual harassment at work.
• Any agreement that tries to silence you may not be enforceable.
• You still have the right to speak publicly, tell your story, or report the behavior.

This also applies to retaliation, which is when your employer punishes you for reporting or speaking up about harassment.

What’s Still Allowed in Confidentiality Agreements?

Not every confidentiality clause is illegal in New Jersey. There are still legitimate and lawful ways these agreements can be used — as long as they’re not used to hide illegal conduct like harassment or discrimination.

Here’s what may still be allowed:

• Protecting trade secrets or company strategies
• Keeping settlement amounts confidential (but not the harassment itself)
• Preventing the employee from making false or defamatory statements
• Restricting disclosure of personal information of other employees

It’s important to note that if an employee chooses to keep their experience private, that’s entirely their decision. But employers cannot legally require silence as a condition of payment or settlement in cases that involve discrimination or conduct that qualifies as sexual harassment under the law.

Common Situations in Severance or Settlement Agreements

Let’s take a look at how confidentiality issues often arise — and what’s legal in New Jersey.

1. You're Offered Severance After Reporting Harassment

You filed a sexual harassment complaint against a supervisor. HR investigates, and shortly after, you're let go with a severance package. The agreement includes a clause that says you can’t “discuss anything relating to your employment experience.”

Problem: This type of blanket clause may violate New Jersey law if it prevents you from discussing harassment or retaliation. Even if you sign it, that portion may not be enforceable.

2. You're Asked to Sign a Settlement with a Non-Disclosure Clause

You sue your employer for sexual harassment. They offer to settle the case, but include a clause that says you can’t talk about the facts of the case or your experience.

Problem: Under New Jersey law, that part of the settlement may be invalid. You still have the right to talk about what happened. That’s why gathering solid evidence for a sexual harassment case is so important from the start.

3. You Want Privacy on Your Own Terms

You’re dealing with the trauma — whether after experiencing sexual harassment at a work event or behind closed doors — and you’d prefer not to go public. You ask your lawyer to include a confidentiality clause to protect your privacy.

Solution: That’s your choice. New Jersey law doesn’t block employees from choosing confidentiality — it just blocks employers from forcing it.

Protections Against Retaliation

New Jersey law not only protects your right to speak: it also protects you from retaliation. That means your employer cannot legally:

• Fire or demote you for reporting harassment
• Cut off severance because you refused a gag order
• Threaten you for speaking publicly about your experience
• Deny you benefits because you rejected a confidentiality clause

Retaliation is a separate violation under both NJLAD and CEPA (New Jersey’s Conscientious Employee Protection Act). If it happens, you may have grounds for a lawsuit.

Tips for Employees Negotiating Severance or Settlements

If you're facing a situation where sexual harassment occurred and a settlement or severance is being discussed, keep the following in mind:

1. Take Your Time

You’re not required to sign anything immediately. Ask for time to review the agreement. If you're over 40, federal law requires at least 21 days to consider it (under OWBPA) if age discrimination is part of the case.

2. Watch for Broad Clauses

Look for any language that:

• Bars you from “discussing employment issues”
• Prohibits “disparagement” even when truthful
• Claims to apply to “all future claims”

These may be problematic, especially if they affect your ability to speak about sexual harassment or file a legal complaint.

3. Ask for Revisions

If a clause seems unfair or potentially illegal, you have the right to ask for it to be removed or rewritten. Many agreements are negotiable.

4. Consult a Lawyer

A sexual harassment lawyer in New Jersey can:

• Review the agreement for red flags
• Negotiate better terms
• Explain your rights
• Ensure you're not giving up protections without knowing it

Your Story Matters

Awareness of workplace harassment is growing. Today, about 70% of U.S. adults believe individuals who engage in sexual harassment or assault at work are more likely to face consequences than they were five years ago. Nearly 60% say that people who report this kind of misconduct are taken more seriously — a shift that reflects changing expectations in how employers respond.

But despite this progress, workplace sexual harassment remains a serious problem — and too often, survivors are still pressured into silence. Even workplace flirting can become harassment when it’s unwanted, repeated, or makes someone feel uncomfortable or unsafe.

When employers try to bury complaints behind confidentiality clauses, they create a culture where harassment can thrive unchecked.

Contact Us for Legal Advice and a Free Consultation

If you’ve experienced sexual harassment at work and are being asked to sign a confidentiality agreement or you already did — you don’t have to navigate this alone.

We help employees understand their rights, push back against illegal agreements, and take legal action when necessary. 

Whether you’re in the middle of a severance negotiation or seeking justice for what happened, a skilled sexual harassment attorney in New Jersey is here to help.

Contact us today for a free, confidential consultation. Let’s make sure your voice is protected.