In Savage v. Township of Neptune, (A-2-23/087229) (Decided May 7, 2024), the Supreme Court of New Jersey held that N.J.S.A. 10:5-12.8(a), a section of the New Jersey Law Against Discrimination (NJLAD) that was enacted in the wake of the “#MeToo movement,” prohibits any “provision in any employment contract or settlement agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment,” regardless of whether it is called a “non-disclosure” or “non-disparagement” provision.
Facts of Savage v. Township of Neptune
Plaintiff Christine Savage began her career as a police officer with the Neptune Township Police Department in 1998. In December 2013, she filed a lawsuit against the Department, the Township of Neptune, and others for sexual harassment, sex discrimination, and retaliation, contrary to the NJLAD. The parties entered into a settlement agreement in 2014. Savage filed a second action in April 2016 against a number of the same defendants, alleging that they had violated the settlement agreement and engaged in continuing — and “intensified” — sex discrimination, harassment, and retaliation.
The parties entered into another settlement agreement in July 2020. Paragraph 10 of the agreement requires in part that the parties agree not to make or cause others to make any statements “regarding the past behavior of the parties” that “would tend to disparage or impugn the reputation of any party. The parties agree that this non-disparagement provision extends to statements, written or verbal, including but not limited to, the news media, radio, television… government offices or police departments or members of the public.”
A television news show aired a story about the case and an interview with Savage in August 2020. Defendants contend that Savage violated the non-disparagement provision of the settlement agreement during the interview both through comments she made, such as “you abused me for about 8 years,” and comments by the interviewer, such as “Savage says the harassment and retaliation intensified with bogus disciplinary charges.”
Defendants filed a motion to enforce the second settlement agreement. The trial court granted the motion, finding that N.J.S.A. 10:5-12.8(a) barred only non-disclosure and confidentiality agreements and that Savage instead violated a non-disparagement clause. The statute provides in part that “[a] provision in any employment contract or settlement agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment (hereinafter referred to as a “non-disclosure provision”) shall be deemed against public policy and unenforceable against a current or former employee.”
The Appellate Division affirmed in part and reversed in part. Relying on the definitions of non-disclosure and non-disparagement provisions set forth in Black’s Law Dictionary, the appellate court found the parties’ non-disparagement clause enforceable but held that Savage had not violated it.
NJ Supreme Court Decision in Savage v. Township of Neptune
The New Jersey Supreme Court reversed, holding that the non-disparagement clause in the agreement is against public policy and cannot be enforced. “Survivors of discrimination, retaliation, and harassment now have a legal right to tell their story — a right that cannot be taken away from them by a settlement agreement,” Chief Justice Stuart Rabner wrote.
In reaching its decision, the New Jersey Supreme Court emphasized that labels like “non-disclosure,” which is in the text, or “non-disparagement,” which is not, do not control the meaning of section 12.8. Rather, the language used by the Legislature controls. As the Chief Justice Stuart Rabner explained:
Our focus, therefore, belongs on the law’s operative terms, which ask whether a provision in an employment contract or a settlement agreement “has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment.” If it does, the agreement is “against public policy and unenforceable.” That is true even if the details relating to a claim disparage an employer.
The New Jersey Supreme Court went on to find that the non-disparagement clause in the agreement ran afoul of the NJLAD. “Because the scope of the agreement would bar individuals from describing an employer’s discriminatory conduct, the agreement encompasses speech the LAD protects,” Chief Justice Rabner wrote. “Defendants also used the agreement to try to hold the sergeant liable for making statements about her claims of discrimination, retaliation, and sexual harassment, which section 12.8 specifically protects.”