Court: Harassment victims like Neptune cop can't be silenced by non-disparagement rules

TRENTON - When Neptune Police Sgt. Christine Savage told a local television reporter that the department had abused her for eight years, her employer said she violated a non-disparagement provision in a settlement to resolve claims of discrimination and harassment.

But the New Jersey Supreme Court on Tuesday ruled unanimously that the provision violated a state law prohibiting employers from using non-disclosure agreements.

"Survivors of discrimination, retaliation and harassment now have a legal right to tell their story — a right that cannot be taken away by a settlement agreement," Chief Justice Stuart Rabner wrote. "The non-disparagement clause in the agreement is against public policy and cannot be enforced."

The court overturned the New Jersey Appellate Division and remanded the case back to the lower court with guidance, noting that non-disparagement clause was unenforceable.

See a full copy of the ruling at the end of this story.

Workplace rules: A bill in Trenton would require employers to reveal pay rate in all job postings

The case stems from non-disclosure agreements, or NDAs, in employment contracts and settlements. Originally designed to prevent workers from sharing trade secrets, advocates in the wake of the #MeToo movement said employers were using them to silence women from speaking out against workplace harassment.

Policy makers have reined in the provisions. Among them: New Jersey, which in 2019 became the first state to ban provisions that were designed to conceal claims of discrimination, retaliation or harassment.

Former Murphy aide played a role: Sexual harassment victims are protected under new law

Savage, who has been fighting her case for more than a decade, cheered the court's decision.

"This day belongs to Christine Savage who had the courage and tenacity to speak out about the sexual discrimination and harassment in the Neptune Police Department that she and others have endured," her Brick-based lawyer, Donald F. Burke Jr., said in a statement. "The Supreme Court upheld her right to speak and rejected the efforts to silence her. It has been a long road and we are grateful to the Supreme Court and proud of having achieved this result for Christine and others who will likely benefit from this ruling."

A lawyer representing Neptune couldn't immediately be reached for comment.

Savage joined the Neptune Police Department as a police officer in 1998. And she, along with Elena Gonzelez, filed a lawsuit in 2013 saying in part that they repeatedly had been passed over for promotions in favor of less qualified men and were subjected to a hostile work environment.

The two sides settled the case . The women were paid $330,000 each and promoted to sergeant.

Savage, however, sued two years later, alleging harassment and retaliation only intensified. The two sides agreed to another settlement in July 2020 that included a non-disparagement provision that read in part: "The parties agree not to make 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."

Neptune police lawsuits: Lawsuits filed against Neptune cops have cost $2M. Taxpayers could be on the hook for more.

Savage the next month discussed the settlement with an NBC reporter, saying of the department, "you abused me for about eight years."

Neptune said Savage violated the non-disparagement provision and filed a motion to enforce the agreement, setting the stage for the court to decide a question that would affect not only the two parties, but also employers and employees statewide: Does the state law prohibiting non-disclosure clauses include non-disparagement clauses?

The Appellate Division said Savage didn't violate the terms of the agreement, but non-disparagement clauses were enforceable.

But the Supreme Court went a step further. It said the Neptune settlement included language that would have prevented employees from revealing information about discrimination and harassment, directly conflicting with the state law.

"Survivors of discrimination and harassment have the right to speak about their experiences in any number of ways, and they can no longer be restrained by confidentiality provisions in employment contracts or settlement agreements," the court said.

Critics of NDA provisions said the decision was an important step in protecting women.

Julie Roginsky, a New Jersey Democratic political strategist who co-founded Lift Our Voices to draw attention to NDA's, said non-disparagement clauses gave employers a way to get around the non-disclosure law, even though few laypeople signing an agreement would understand where the line was drawn.

The court's decision was groundbreaking, she said in an interview. "If the Legislature is going to give people the right to speak out about violations under the law against discrimination, then that right should not be limited in any way. They should be able to tell their truth and tell their stories and then not be bound by any type of gag order. And a non-disparagement agreement is just a gag order by another name."

Christine Savage case by Dennis Carmody on Scribd

Michael L. Diamond is a business reporter who has been writing about the New Jersey economy and health care industry for more than 20 years. He can be reached at mdiamond@gannettnj.com.

This article originally appeared on Asbury Park Press: Court: Harassment victims like Neptune cop can't be silenced by non-disparagement rules