The Supreme Court of New Jersey recently issued a decision in Savage v. Twp. Of Neptune, (A-2-23)(087229), 257 N.J. 204 (2024) (slip. op.) holding the parties’ non-disparagement provision to be unenforceable as it was found to run afoul of N.J.S.A. §10:5-12.8(a).

N.J.S.A. 10:5-12.8(a) of the Law Against Discrimination (LAD) was enacted in response to the #MeToo movement prohibiting confidentiality of discrimination, harassment, and retaliation claims in settlement agreements. The Township sought to enforce a non-disparagement provision after Christine Savage gave an interview on NBC 4 New York which the Township saw to be disparaging and violative of the settlement agreement. The Court, in reversing the Appellate Division, found that the non-disparagement provision, which reads 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. 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.”

prevented Savage from discussing “details relating to a claim of discrimination, retaliation, or harassment” which was her right under N.J.S.A. 10:5-12.8(a). In essence, the parties’ agreed-upon non-disparagement provision was overbroad.

The Bottom Line: Employers should take careful notice of this decision when drafting settlements of NJLAD claims to ensure that any non-disparagement provisions not have the purpose or effect of concealing the details relating to the underlying claims.

The author thanks Summer Law Clerk, Jaden Martin, for his assistance with this article.