Are Non-Disclosure Agreements (NDAs) Enforceable for Sexual Harassment Claims in Maryland?

For decades, many companies used restrictive contracts and hidden clauses to silence victims of workplace abuse. Employees were often forced to sign away their rights to speak out just to get hired or to receive a severance package. However, the legal landscape in Maryland has dramatically shifted to protect workers. If you live in Columbia, Silver Spring, or Baltimore, and your employer is pressuring you to stay quiet about sexual harassment, it is crucial to know your rights. This guide explains Maryland's specific restrictions on forced Non-Disclosure Agreements (NDAs) regarding sexual harassment and how the law protects your voice.

Pre-Employment Arbitration Clauses and Waivers

Maryland has taken a strong stance against employers who try to muzzle their staff before harassment even occurs. In 2018, the state enacted the Disclosing Sexual Harassment in the Workplace Act. Under Md. Code Ann., Lab. & Empl. § 3-715, any provision in an employment contract, policy, or agreement that waives any substantive or procedural right or remedy to a future claim of sexual harassment or retaliation is null and void as being against the public policy of the State.

This means if you signed an employment contract on your first day that included a blanket NDA or a mandatory arbitration clause specifically prohibiting you from taking a future sexual harassment claim to court or discussing it publicly, that specific clause cannot be enforced against you in Maryland. You still retain the right to file a complaint with the Maryland Commission on Civil Rights, Baltimore or take your case to court. Furthermore, federal law also steps in; the 42 U.S.C. § 19403 prohibits the judicial enforceability of pre-dispute NDAs and non-disparagement clauses in cases involving sexual assault and sexual harassment.

Severance Package NDA Restrictions

What happens if you are leaving the company after experiencing harassment, and the employer offers you a severance package in exchange for your silence? While Maryland law voids waivers for future claims, settling an existing claim involves different rules. If you have already been harassed and you negotiate a settlement or accept a severance agreement that releases your employer from liability for past acts, an NDA might be included.

However, Maryland employers cannot force you to accept a settlement that mandates an NDA without giving you proper consideration (usually financial compensation). Additionally, under Md. Code Ann., State Gov't § 20-606, if an employer retaliates against you for refusing to sign an NDA regarding sexual harassment, they are committing a separate illegal act. If you are handed a severance agreement containing a strict confidentiality clause regarding sexual harassment, you should immediately take it to an employment attorney. Your lawyer might suggest negotiating the terms, or filing a lawsuit in a venue like the Circuit Court for Prince George's County, Upper Marlboro to challenge the employer's actions.

When an Employee Chooses to Keep a Settlement Confidential

It is important to understand that not all NDAs are inherently bad for the employee. In many sexual harassment cases, the victim may actually prefer confidentiality to protect their own privacy, reputation, and future career prospects. Maryland law does not forbid an employee and an employer from entering into a settlement agreement that includes a confidentiality clause, provided that the agreement settles an existing dispute and is entered into voluntarily by both parties.

If you choose to sign an NDA as part of a financial settlement after harassment has occurred, that agreement is generally enforceable. If you later breach that NDA by speaking publicly or posting about the harassment on social media, your former employer could sue you for breach of contract and demand the return of the settlement money. The courts prioritize the voluntary nature of the agreement, ensuring the employee was not coerced.

How Much Does it Cost in Maryland?

Reviewing or challenging an NDA requires legal expertise, and the costs can vary.

• Contract Review: If you need an attorney to review a severance package or NDA before you sign it, many Maryland employment lawyers charge a flat fee ranging from $300 to $800.
• Litigation Contingency: If you are filing a lawsuit for sexual harassment and asking the court to invalidate an illegal pre-employment NDA, your attorney will likely work on a contingency basis, taking 30% to 40% of the final settlement.
• Filing Fees: Filing a civil lawsuit in a Maryland state court to pursue your underlying harassment claim costs approximately $165.

How Long Does the Process Take?

If you are simply having a lawyer review an NDA or a severance package, the process is quick and can usually be completed in a few days. If you are actively litigating a sexual harassment claim because your employer wrongfully tried to enforce a void NDA against you, the timeline is much longer. Filing an initial charge with the Maryland Commission on Civil Rights, Baltimore must occur within two years under Md. Code Ann., State Gov't § 20-1004(c)(3)(i). If the case proceeds to civil court, the entire legal process can take between 12 and 24 months to resolve.

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