New California Law Would Open Up Can Of Worms For Workplace Harassment Claims

Workplace harassment is a difficult subject for state governments struggling to understand that anonymity can mean the difference between keeping one’s job or losing it. And the worst part is, company-mandated non-disclosure agreements (which are a staple for big companies these days) prevent anyone from discussing these matters with outside parties. That means if you’re fired for blowing the whistle on harassment, there’s nothing you can legally do about it.

One of the most public examples of these policies recently involved Fox News anchor Gretchen Carlson. You might remember that she leveled an accusation of sexual harassment toward the then-CEO Rover Ailes. Although Ailes stepped down, she went out the door right behind him. And she can’t tell her story because an NDA legally prevents it.

#MeToo supporters are trying to target laws that allow this kind of backwards behavior.

A new California bill is being sponsored by Senator Connie Leyva (D-Chino). SB 820 would ban NDAs that prevent victims from telling their stories publically. The bill has already gone through the State Assembly’s judiciary committee in July, but it still requires support from the state Senate and a signature from California Governor Newsom before being put into law. 

According to Los Angeles attorney Jeffrey W. Cowan, NDAs that prevent publically acknowledgement of sexually motivated crimes are “a blight on the legal system.” He expects the new bill to “go a long way toward ensuring that trials and discrimination claims are an effective search for truth, and that there is accountability for victims of unlawful discrimination in the workplace.”

The only thing that would still be confidential in cases like the aforementioned? Settlement amounts.

But not everyone agrees with the law’s potential for protecting the victims. A letter penned by the California Chamber of Commerce reads: “SB 820 will drive employers to fight these cases in court instead of resulting in an early resolution.”

But it’s hard to see the merits in that. Companies generally try to avoid public scrutiny, and that means settling cases instead of bringing them to court — even when certain details have already been made public.

Michael Morrison, an attorney for one victim, said: “In terms of sexual harassment, nothing has been more devastating to getting information out about harassers than arbitration clauses.”

A separate measure written by the California Assembly would ban arbitration clauses in employment contracts. These clauses force employees to hand away their legal right to sue an employer for any reason. Instead, employees and employers must use arbitration to settle differences. These, too, are often bound by non-disclosure agreements.

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