When a workplace sexual harassment case settles, the employer almost always wants a confidentiality agreement. That’s standard. What many employees don’t realize is that Massachusetts has meaningful legal protections that limit what those agreements can actually require of you. Signing without understanding those limits is a mistake that’s difficult to undo. This is not a situation where you should be relying on the employer’s attorney to explain your rights. They’re not working for you.
What Massachusetts Law Says About NDAs in Harassment Cases
In 2018, Massachusetts passed legislation that directly addressed the use of nondisclosure agreements in sexual harassment and discrimination settlements. Under Massachusetts General Laws Chapter 149, employers cannot require employees to keep confidential the facts underlying a sexual harassment claim unless the employee affirmatively requests that confidentiality.
Read that again. The default position under Massachusetts law is that confidentiality in a harassment settlement has to be the employee’s choice, not the employer’s demand. If you want the settlement terms kept private, you can still agree to that. But the employer cannot make their payment contingent on you staying silent about what happened to you, unless you’re the one asking for that arrangement.
What an NDA in a Harassment Settlement Can and Cannot Do
Even when confidentiality is permitted, there are limits. Specifically, an NDA in a Massachusetts harassment settlement cannot:
- Prevent you from talking to an attorney, therapist, or immediate family member
- Stop you from filing a charge with the Equal Employment Opportunity Commission or the Massachusetts Commission Against Discrimination
- Bar you from cooperating with a government investigation or law enforcement
- Require you to deny that harassment occurred
What it can do, when you agree to it voluntarily, is restrict you from publicly disclosing the settlement amount or specific details of what happened. That’s a meaningful distinction. Your voice is not fully silenced, even when a confidentiality provision is in place. A Cambridge sexual harassment lawyer can review any proposed NDA language before you sign and explain exactly what you’re agreeing to give up.
The Tax Implications Are Real Too
One thing that often catches people off guard is the federal tax treatment of harassment settlements. Since 2017, settlement payments made in connection with sexual harassment cases that are subject to a nondisclosure agreement are no longer deductible by the employer under federal tax law. That shift changed how some employers approach confidentiality demands, and it’s worth understanding as part of any negotiation. Your settlement amount, the confidentiality terms, and the tax treatment are all connected. They shouldn’t be negotiated in isolation.
Common Pressure Tactics to Watch For
Employers and their insurers sometimes create urgency around settlement timelines. Common tactics include:
- Presenting a “take it or leave it” offer with a short deadline
- Framing the NDA as a routine formality rather than a negotiated term
- Downplaying the scope of what the confidentiality clause actually covers
- Pressuring employees to sign before they’ve had time to consult an attorney
None of these tactics obligates you to sign quickly. You have the right to review any proposed agreement carefully and to have an attorney look at it before you commit.
Protecting Yourself Starts With Understanding Your Options
A settlement can be a reasonable resolution of a difficult situation. It can also leave money and rights on the table if you’re not represented. The confidentiality terms in particular deserve close attention, because what you agree to now affects what you can say and do afterward.
Fogelman Law LLC represents employees throughout Massachusetts in workplace sexual harassment claims and settlement negotiations. If you’ve been offered a settlement and want to understand what you’re being asked to sign before you do, speaking with a Cambridge sexual harassment lawyer gives you the clearest picture of your rights and options before it’s too late to change course.
