Agreements in Advance Not to Disclose a Hostile Work Environment or Sexual Harassment are Unenforceable

Effective August 1, 2024, a new Louisiana statute provides that "no nondisclosure clause required by an employer and agreed to prior to a hostile work environment dispute or sexual harassment dispute shall be judicially enforceable." The statute defines "nondisclosure clause" as "an agreement between an employee and employer that prevents, or has the effect of preventing, an employee from disclosing or discussing a hostile work environment, allegations of a hostile work environment, sexual harassment, or allegations of sexual harassment."

How does the statute define hostile work environment and sexual harassment?

The statute defines a hostile work environment as "conditions where harassment rises to the level that the harassment alters the ability of an employee to perform the employee's duties."

The statute defines sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal, physical, or inappropriate conduct of a sexual nature when the conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating or offensive work environment."

Are agreements signed after a claim enforceable?

The new statute does not restrict the ability of an individual to enter into a confidential settlement agreement, provided that the agreement is entered into after a report of hostility is filed or a hostile work environment dispute or sexual harassment dispute has occurred.

Something employers should consider.

The statute likely is intended to invalidate nondisclosure agreements between employers and employees only to the extent they prohibit in advance disclosure of certain types of harassment. However, read literally, the statute arguably invalidates the entirety of any nondisclosure agreement between an employer and an employee that, while not mentioning harassment at all, has such a broad scope that it effectively includes such a prohibition. Many nondisclosure agreements have such breadth and thus may be at risk of being held invalid. In light of this new statute (codified at La. R.S. 9:2717.3), Louisiana employers should consider reviewing and possibly revising their standard form confidentiality agreements.