313 A.3d 65
N.J.2024Background
- Christine Savage, a Neptune Township police sergeant, sued her employer for sexual harassment, sex discrimination, and retaliation in 2013, resolving the matter in a 2014 settlement.
- Savage filed a second lawsuit in 2016, alleging ongoing discrimination and violations of the earlier settlement.
- In 2020, a new settlement agreement was reached, containing a broad non-disparagement clause preventing either party from making statements that could impugn the other's reputation.
- After Savage participated in a televised interview discussing her experiences, defendants moved to enforce the non-disparagement clause, alleging she had breached it.
- The trial court enforced the clause, awarding limited fees to defendants; the Appellate Division held the clause enforceable but found Savage’s statements did not violate it.
- Savage appealed, challenging whether such non-disparagement provisions can bar disclosure of discrimination or harassment details post-settlement given the New Jersey Law Against Discrimination (LAD).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the LAD bar enforcement of non-disparagement provisions that conceal details of discrimination claims? | The LAD broadly protects the right to disclose details of discrimination, making such non-disparagement clauses unenforceable. | The LAD only bars non-disclosure, not non-disparagement, clauses; Savage violated an enforceable term. | Such clauses are unenforceable if they conceal details of discrimination, retaliation, or harassment claims. |
| Is the statutory term "non-disclosure provision" limited to such clauses by their label? | The law’s substantive effect—not terminology—controls; any clause that conceals discrimination details is barred. | Only clauses labeled as “non-disclosure” are covered by the LAD. | Clause labels do not control; what matters is whether concealment occurs. |
| Can settlement agreements restrict employees from publicly disclosing discrimination, retaliation, or harassment? | No, survivors have the legal right to speak; the statute removes the ability to contractually silence them. | Such clauses are necessary for settlement and not explicitly banned. | Survivors cannot be silenced by settlement agreement; right to speak is protected. |
| Are defendants entitled to attorney’s fees and costs following the dispute? | No, because the non-disparagement provision is unenforceable under the LAD. | Yes, as Savage purportedly breached the settlement agreement. | Defendants are not entitled to attorney’s fees and costs in this context. |
Key Cases Cited
- Nini v. Mercer Cnty. Cmty. Coll., 202 N.J. 98 (2010) (LAD’s remedial purpose must be liberally construed to eradicate workplace discrimination)
- Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587 (1993) (LAD aims to protect the public’s strong interest in a discrimination-free workplace)
- Smith v. Millville Rescue Squad, 225 N.J. 373 (2016) (Victims of workplace discrimination face pervasive problems, requiring careful attention to legislative intent)
- DiProspero v. Penn, 183 N.J. 477 (2005) (Statutes must be read in context to give sense to legislative intent)
- State v. S.B., 230 N.J. 62 (2017) (Courts are bound by statutory definitions provided by the legislature)