Workers who have endured discrimination or harassment on the job deal with it in a wide array of different ways. Some survivors of harassment and discrimination feel that an important part of the process is speaking publicly about what happened to them. What sometimes confines them, though, is if they signed something called a “non-disparagement agreement” as part of the settlement of their civil lawsuit. These agreements, however, sometimes leave openings that may permit you to speak out and remain in compliance with your contractual obligations. Whether negotiating a settlement, reviewing a non-disparagement agreement, or determining when and how to speak out, a skilled New Jersey employment discrimination lawyer can help to make wise choices.
Recently, a former police sergeant in Monmouth emerged successful in precisely this kind of case. The employee, C.S., allegedly was the target of sexual harassment and sex discrimination at work. Both C.S. and E.G., another female officer on the force, filed sex discrimination lawsuits in 2013. The sides settled the cases in 2014. The department agreed to promote both women to the rank of sergeant, making them the only female sergeants on the force.
However, the women allegedly experienced more harassment and discrimination and more lawsuits ensued. C.S. settled her 2016 lawsuit in July 2020. That second settlement included a “non-disparagement agreement.”
The agreement C.S. signed prohibited her from making “any statements written or verbal, or cause or encourage others to make any statements, written or verbal regarding the past behavior of the parties, which statements would tend to disparage or impugn the reputation of any party. The parties agree that this non[-]disparagement provision extends to statements… to the news media, radio, television, internet postings of any kind, blogs, social media, (e.g., Facebook, Instagram, Twitter, or the like), consumer or trade bureaus, other state, county, or local government offices or police departments or members of the public.”
Shortly after the court dismissed the settled case, the sergeant agreed to an interview with a reporter from NBC4 in New York City. In that interview, she told the reporter that the department “abused” her for eight years, pursued “bogus” disciplinary charges against her, that the department was never going to change, and that the department operated under the “good ol’ boy system.”
Even though non-disparagement clauses like the one this police sergeant signed are generally permissible in New Jersey, there are limits to the extent of their coverage. As with all binding agreements, contract law says that, when the parties expressly include a specific term in the agreement, the contract can be construed as banning that conduct but not banning similar conduct that the parties did not include in the agreement. For example, if a hypothetical disclosure clause said, “Party Z may not speak about this subject on Monday, Tuesday, Thursday, Friday, or Saturday,” a court likely would construe that clause as not barring comments made on Wednesdays or Sundays.
The Agreement Barred Criticisms of Past Behavior Only
In C.S.’s case, the non-disparagement agreement explicitly stated that it covered statements “regarding the past behavior of the parties, which statements would tend to disparage or impugn the reputation of any party.” The key word there was “past.” In the sergeant’s interview with NBC4, the allegedly improper comments were her comments that the department “oppressed” women, did not want women on the force, hadn’t changed, and was a “good ol’ boys” club.
These, according to the Appellate Division court, represented the sergeant’s impressions about the present and future conduct of those in power at the police department. None of the sergeant’s critiques, according to the court, related to past behavior by the department.
Additionally, some of the things C.S. said weren’t actionable for a different reason. The NBC4 interview included comments from the sergeant about “bogus” disciplinary charges and a phony assertion of psychological unfitness for duty. Those comments, however, were things the sergeant originally said in a previous interview, one that predated the settlement. Because she made the assertions before signing the agreement, they could not represent a violation of the non-disparagement requirement.
If you’ve endured harassment or discrimination at work, you have much to think about. You have to decide whether or not to sue. If you sue, you have to decide whether or not to settle, and then you have to ensure that the settlement agreement you sign is the right one for you. At each of these critical steps, the right legal representation is key. Count on the skilled New Jersey sex discrimination attorneys at Phillips & Associates to be the knowledgeable and powerful advocate you need. To get our team started on your case, contact us online or at (609) 436-9087 today to set up a free and confidential consultation.