NDAs and Confidentiality in Sexual Harassment and Discrimination Settlements in New York

New York State limits when an employer can require silence as part of settling a harassment or discrimination claim. Under General Obligations Law § 5-336, an employer may not include in any settlement or other resolution of a claim involving discrimination, harassment or retaliation a term that would prevent disclosure of the underlying facts and circumstances, unless confidentiality is the complainant's preference.⁠^[1] When it is, the complainant has up to 21 days to consider the term and at least seven days after signing to revoke.⁠^[2][3]

The rules on this page come from New York State statutes and from federal law. Despite the common shorthand "sexual harassment NDA law," the State statute is not limited to sexual harassment; that history is explained below.

How a settlement confidentiality term becomes valid under State law

New York General Obligations Law § 5-336(1) sets a sequence. Each step comes from the statute's text:⁠^[1][2][3]

1. Confidentiality is the complainant's preference. Without that, the employer and its officers and employees have no authority to include or agree to the term.⁠^[1]
2. The term is put in writing. It must be provided in writing to all parties in plain English and, if applicable, in the complainant's primary language.⁠^[2]
3. Time to consider. The complainant has up to twenty-one days to consider the term.⁠^[2]
4. A signed agreement. If confidentiality is the complainant's preference, that preference is memorialized in an agreement signed by all parties.⁠^[2]
5. Seven days to revoke. For at least seven days after signing, the complainant may revoke the agreement, and it does not become effective or enforceable until that period has expired.⁠^[3]

The restriction is on terms that prevent disclosure of "the underlying facts and circumstances to the claim or action."⁠^[1] The statute's text does not mention confidentiality of the settlement amount.⁠^[1]

"Up to" 21 days: the 2023 change and the mismatch that remains

The 21-day period in General Obligations Law § 5-336 is no longer a fixed period. Chapter 658 of the Laws of 2023, signed and effective November 17, 2023, changed "twenty-one days" to "up to twenty-one days" for agreements entered on or after that date.⁠^[7] Before the amendment the statute gave a fixed twenty-one days.⁠^[2]

The complication is a second State statute. CPLR § 5003-b applies the same preference rule when a discrimination claim is resolved by agreed judgment, stipulation, decree, agreement to settle, assurance of discontinuance or otherwise, and it was not amended in 2023.⁠^[4]

Point	Gen. Oblig. Law § 5-336 (New York State)	CPLR § 5003-b (New York State)
Whose preference	The complainant's.⁠[1]	The plaintiff's.⁠[4]
Time to consider	"Up to twenty-one days."⁠[2]	"Twenty-one days," with the preference memorialized "after twenty-one days."⁠[4]
Revocation after signing	At least seven days.⁠[3]	At least seven days.⁠[4]
Amended in 2023?	Yes, by chapter 658 of the Laws of 2023.⁠[7]	No.⁠[4]

This is a difference in the wording of two statutes, and it should be read as that. The seven-day revocation period is mandatory under both and was not changed by the 2023 amendment.⁠^[3][4]

As of September 16, 2026, the State's "Combating Workplace Sexual Harassment" FAQ page still said the 21-day period cannot be waived or shortened and quoted the pre-2023 text of § 5-336, which is inconsistent with the current statute.⁠^[8]

What a settlement NDA can never block

Even a confidentiality term the complainant asked for has limits under New York State law. It is void to the extent it prohibits or restricts the complainant from:⁠^[5]

• initiating, testifying in, assisting, complying with a subpoena from, or participating in any manner with an investigation conducted by the appropriate local, state or federal agency; or⁠^[5]
• filing or disclosing any facts necessary to receive unemployment insurance, Medicaid or other public benefits to which the complainant is entitled.⁠^[5][9]

Federal law points the same way for the EEOC. The EEOC says that even after signing a release a person can still file a charge, and that a provision that tries to waive the right to testify, assist or participate in an EEOC investigation, hearing or proceeding is invalid and unenforceable.⁠^[10]

Terms that make the release itself unenforceable

The 2023 amendment added a rule aimed at how confidentiality is enforced against the person who complained. Under New York General Obligations Law § 5-336(3), no release of a claim involving unlawful discrimination, discriminatory harassment or retaliation is enforceable if, as part of the agreement resolving the claim:⁠^[6]

• the complainant is required to pay liquidated damages (a preset sum) for violating a nondisclosure or nondisparagement clause;⁠^[6]
• the complainant is required to forfeit all or part of the consideration (what they were paid for the agreement) for violating such a clause; or⁠^[6]
• the agreement contains or requires any affirmative statement, assertion or disclaimer by the complainant that they were not in fact subject to unlawful discrimination, harassment or retaliation.⁠^[6]

Two details matter. The consequence written into the State statute is that the release is not enforceable, not merely the offending clause.⁠^[6] And the amendment applies to agreements entered on or after November 17, 2023.⁠^[7] For how releases work generally, see severance agreements: what you give up when you sign.

NDAs signed at hiring or during employment

A separate part of the New York State statute deals with agreements signed before any claim exists. A provision in a contract between an employer and an employee, potential employee or independent contractor, entered into on or after January 1, 2020, that prevents the disclosure of factual information related to any future claim of discrimination is void and unenforceable unless it notifies the person that it does not prohibit speaking with:⁠^[11]

• law enforcement;⁠^[11]
• the Equal Employment Opportunity Commission (EEOC);⁠^[11]
• the State Division of Human Rights;⁠^[11]
• the Attorney General;⁠^[11]
• a local commission on human rights; or⁠^[11]
• an attorney retained by the employee or potential employee.⁠^[11]

Federal law adds the Speak Out Act. For a sexual assault dispute or sexual harassment dispute, no nondisclosure clause or nondisparagement clause agreed to before the dispute arises is judicially enforceable where the conduct is alleged to have violated federal, tribal or state law.⁠^[12] The Act applies to claims filed on or after December 7, 2022, does not stop a state from enforcing its own law that is at least as protective, and does not prevent employers and employees from protecting trade secrets or proprietary information.⁠^[13]

The federal Act's reach is narrower than it is sometimes described. It covers only clauses agreed to before the dispute arose, and only sexual harassment and sexual assault disputes.⁠^[12] Confidentiality in a settlement signed after a dispute has arisen is governed in New York by the State rules above.⁠^[1]

It is not only about sexual harassment

New York's settlement NDA rule was enacted in 2018 as part of a package of measures on workplace sexual harassment, together with CPLR § 5003-b.⁠^[14] The Legislature widened it twice:

• A 2019 law extended the NDA provisions to all discrimination cases.⁠^[15]
• The 2023 amendment added harassment and retaliation claims, extended the employment-contract provision to independent contractors, and added the Attorney General to the list that the required notice has to name.⁠^[7]

So as of October 2026 the State statute covers any claim whose factual foundation involves discrimination, harassment or retaliation in violation of laws prohibiting discrimination, including the State Human Rights Law.⁠^[1] For the wider timeline, see what changed: New York workplace law, 2018 to 2026.

The federal tax rule that shapes negotiations

Under the federal tax code, no business deduction is allowed for any settlement or payment related to sexual harassment or sexual abuse if the settlement or payment is subject to a nondisclosure agreement, or for attorney's fees related to such a settlement or payment.⁠^[16] That rule concerns the payer's deduction. The IRS has stated that recipients of such settlements are not precluded by that provision from deducting their own attorney's fees, if otherwise deductible.⁠^[17] How settlement money is taxed to the person who receives it is a different question, covered in are settlements and awards taxable?

Do not confuse this with the age-discrimination waiver periods

Two different "21 days and 7 days" rules often appear in the same agreement. The New York State rule above is about a confidentiality term.⁠^[2] A federal rule governs waivers of age-discrimination claims: a waiver of rights under the Age Discrimination in Employment Act is not knowing and voluntary unless the person is given at least 21 days to consider it (at least 45 days in a group exit program) and at least seven days after signing to revoke.⁠^[18] The federal statute says "at least" 21 days; the State statute says "up to" twenty-one days for the confidentiality term.⁠^[18][2] The page on how long you have to consider an agreement sets the periods side by side.

Common misunderstandings

• "NDAs are banned in New York harassment settlements." They are not banned. The State statute allows a confidentiality term when it is the complainant's preference and the statutory steps are followed.⁠^[1][2]
• "Public Officers Law § 17-a keeps public-sector harassment settlements confidential." That section deals with a State employee reimbursing the State after a final judgment of personal liability for intentional wrongdoing related to a sexual harassment claim; it is not a confidentiality rule.⁠^[19]

Reading an agreement: a practical checklist

These questions follow the statutes described above.

• Does the agreement say that confidentiality is your preference, and is it?⁠^[1]
• Were you given the confidentiality term in writing, in plain English and in your primary language if that applies?⁠^[2]
• Does it give you at least seven days after signing to revoke?⁠^[3]
• Does it try to restrict you from taking part in an agency investigation or from disclosing facts needed for public benefits?⁠^[5]
• Does it require you to pay a preset sum or return money if you breach a nondisclosure or nondisparagement clause, or to state that no discrimination, harassment or retaliation occurred?⁠^[6]
• Does it also include an arbitration clause? See can I be forced into arbitration?

Settlements are often reached in mediation; see mediation at the EEOC, the Division, the Commission and in court. If you are being pressured about an agreement after reporting harassment, see retaliation after reporting sexual harassment.