Since 2019, New Jersey employers have had difficult decisions to make when confronted with lawsuits from employees alleging claims arising under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -50 (the LAD). Specifically, N.J.S.A. 10:5-12.8, enacted on March 18, 2019, mandates in relevant part that "[a] provision in any … settlement agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment … shall be deemed against public policy and unenforceable against a current or former employee … who is a party to the … settlement." See N.J.S.A. 10:5-12.8(a). This statute otherwise stipulates that if an employee were to "reveal[] sufficient details of the claim so that the employer is reasonably identifiable, then the non-disclosure provision shall also be unenforceable against the employer." See ibid.  

Essentially, under this framework, it is completely within the discretion of the employee as to whether to abide by any confidentiality provisions included in settlement agreements resolving LAD claims, and, to the extent the employee chooses to talk about the underlying allegations of the lawsuit publicly such that the employer is identifiable, the employer would, in turn, be permitted to do so as well. This arrangement presents clear and extensive problems for employers seeking to settle LAD lawsuits brought against them by their employees. In many cases, employers choose to settle these lawsuits—whether the allegations are meritorious or patently frivolous—solely to avoid the negative publicity that they would suffer in the event details about the lawsuit were to be learned by the public. The employer typically has sufficient resources such that it could withstand a prolonged and costly litigation, more so than the plaintiff-employee.