Non-disparagement agreements in discrimination suits not barred by state law, judges rule

Ex-cop calling Neptune police a ‘good ol’ boy system’ led to legal action by town

By: - May 31, 2022 4:57 pm

Judges have ruled that parties in a lawsuit can enforce non-disparagement agreements, in a case involving a former Neptune cop accused of violating such an agreement in an interview with NBC New York in 2020. (Getty Images)

Though New Jersey in 2019 banned the use of non-disclosure agreements in cases involving workplace issues like harassment and retaliation, non-disparagement agreements remain on the table, an appellate panel ruled Tuesday.

The decision stems from an interview former Neptune Township police sergeant Christine Savage gave to NBC New York in 2020, after she and the town settled a legal dispute over her claims of gender-based discrimination, harassment, and retaliation. Neptune charged Savage’s comments to the news station violated a non-disparagement agreement the two sides signed when they settled.

The three-judge panel ruled Tuesday against Savage’s arguments that the 2019 ban on non-disclosure agreements also makes non-disparagement pacts unenforceable, though the judges handed her a win by declaring that her comments to NBC New York were not barred by the non-disparagement agreement.

Savage’s attorneys lauded the court’s finding that their client did not violate the agreement but cautioned the appellate panel’s ruling could enable employers to conceal their misconduct. The Legislature intended to prohibit all agreements that prevent victims of workplace wrongdoing from speaking out, he said.

“This will allow employers to silence victims of discrimination and retaliation by labeling the clause a non-disparagement clause rather than a non-disclosure agreement,” said lawyer Donald F. Burke Jr.

It’s not clear whether Savage will appeal that portion of the appellate decision. Burke said they are still reviewing the opinion and considering their options.

Savage and township officials settled her discrimination lawsuit in July 2020, and the then-sergeant was paid $248,560 in damages and other financial benefits. As part of the settlement, she and the township became bound by a non-disparagement agreement that barred statements about past behaviors that could damage either party’s reputation.

Shortly after the settlement was reached, Savage repeated past claims to NBC New York and said the Neptune Township Police Department remained an unfriendly place to women.

“It has not changed, not for a minute. It’s not gonna change, it’s the good ol’ boy system,” she said, adding, “They don’t want women there.”

Savage received $330,000 in 2014 as part of a separate settlement in a case alleging sexual misconduct and harassment by her male supervisors.

In a reversal of the trial court decision, the appellate judges found Savage had not breached the non-disparagement accord because her statements dealt with the department’s present culture — the agreement bars only comments about past behavior.

They further found comments she made during the interview about the department’s past behavior were not disparaging because they repeated claims put on the record before the parties reached the 2020 settlement.

It is not clear whether the township will seek to petition the New Jersey Supreme Court for another appeal, and its attorneys did not immediately return a request for comment.

Architects think the courts got it wrong

New Jersey banned the use of non-disclosure agreements in cases involving harassment, retaliation, or discrimination in 2019 after former Murphy administration official Katie Brennan leveled a high-profile sexual assault charge against Al Alvarez, who led Muslim and Latino outreach efforts for Gov. Phil Murphy’s 2017 gubernatorial campaign.

Brennan accused Alvarez, who because chief of staff at the School Development Authority after Murphy took office and resigned the position just before Brennan’s allegations became public, of sexually assaulting her in April 2017. Alvarez has denied any wrongdoing.

Tuesday’s ruling says the 2019 law does not expressly bar or exempt the use of non-disparagement agreements. But the law’s chief architect thinks the appellate panel has it wrong.

“When we talked about non-disclosure agreements, had anybody asked, that would have and should have been included. I don’t think it was something that anybody brought to my attention, our collective attention,” former state Sen. Loretta Weinberg told the New Jersey Monitor. “And I think, in fact, if that’s how the courts decided, then the law should be revisited.”

Weinberg is likely to have allies in that fight. Nancy Erika Smith, a prominent employment attorney who represented Gretchen Carlson and Julie Roginsky in their sexual harassment suits against Fox News and its former CEO, Roger Ailes, likewise said Tuesday’s decision is an error.

“I did the hearings. I was there at the day of the vote. I testified. My clients testified,” she said. “The purpose was to stop silencing victims of discrimination, so if you call it ‘disparagement’ and not ‘disclosure,’ the idea that that’s a rational interpretation of the law, to me, is insane.”

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Nikita Biryukov
Nikita Biryukov

Nikita Biryukov most recently covered state government and politics for the New Jersey Globe. His tenure there included revelatory stories on marijuana legalization, voting reform and Rep. Jeff Van Drew's decamp to the Republican Party. Earlier, he worked as a freelancer for The Home News Tribune and The Press of Atlantic City.