In the wake of the #metoo movement, several lawmakers proposed legislation to ban confidentiality provisions in workplace sexual harassment settlements.
Critics of confidentiality agreements say that they enable serial abusers and silence victims. But, some advocates question whether a ban could actually harm individuals. For instance, some victims may actually prefer confidentiality and the prospect of publicity may discourage them from coming forward. Further, the promise of confidentiality may lead to larger (and earlier) monetary settlements for victims.
Putting the debate aside, here is a summary of some of the legislation we are tracking:
- Introduced in January 2018, SB 820 seeks to prohibit confidentiality or nondisclosure provisions in settlement agreements that restrict any party from disclosing the facts relating to claims for sexual harassment, sexual assault and sex discrimination–unless a claimant requests the inclusion of a such a provision.
- Parties would remain free to require confidentiality as to the amount of a settlement, but could not shield the facts underlying the action.
- Applicable to all public and private employers in California.
- Would apply only to settlements of actions filed in court in which the pleadings state a claim for sexual harassment, assault or discrimination. (So settlements of threatened claims that are not yet filed in court could still include the broader nondisclosure provisions.)
- Interestingly, note that last year California became the first state to bar nondisclosure agreements in civil cases that could be prosecuted as felony sex crimes so there is a state history of restricting the use of nondisclosure agreements.
- In December 2017, State Senator Loretta Weinberg proposed SB 3581, a bill that would prohibit employers from using non-disclosure provisions to keep victims of workplace sexual harassment from speaking up. It is still under consideration.
- New York Governor Andrew Cuomo kicked off his 2018 State of the State Address with a proposal to combat sexual harassment in the workplace.
- Not only is Governor Cuomo pushing to prohibit arbitration of sexual harassment cases, but he indicated he will propose legislation to prevent public entities and other branches of the state and local government from requiring confidentiality and non-disclosure provisions in settlement agreements related to sexual assault or harassment complaints (unless preferred by the victim).
- Simultaneously, the New York Legislature is considering SB 6382A that would prevent the enforcement of certain nondisclosure agreements relating to claims of discrimination, harassment, non-payment of wages or benefits and retaliation.
- In November 2017, the state Senate introduced SB 999 to prohibit non-disclosure agreements in the settlement of civil claims for sexual assault or harassment. As of the date of publication, the bill is still pending.
- If enacted, the bill would grant a shield of confidentiality to victims making allegations of abuse, giving them rights similar to juveniles in child welfare cases who can have cases brought through their initials or other identifiers.
- In early March, the Washington state legislature delivered SB 5996, “Encouraging the disclosure and discussion of sexual harassment and sexual assault in the workplace,” to the Governor for signature.
- Among other the things, the new law prohibits employers from requiring employees to sign nondisclosure agreements or waivers that restrict employees from discussing sexual harassment or sexual assault occurring in the workplace. However, SB 5996 includes a limited carve-out–it does not prohibit settlement agreements between an employer and its current or former employees from containing confidentiality provisions to resolve allegations of sexual harassment (but not sexual assault).
Stay tuned as we report back on legislative developments in this area. For more, contact your Baker McKenzie lawyer.