California Bans “Secret” Sexual Harassment Settlements
In light of the ongoing scandals surrounding high-profile cases of sexual harassment and sexual assault, California legislators have moved to restrict the ability of employers and other parties to enforce confidentiality clauses in civil settlement agreements. Many California businesses choose to resolve sexual harassment and related allegations out-of-court, but only on the condition of total confidentiality. This means neither the accuser nor the accused may discuss the contents of the settlement–or even the fact that an allegation was made.
Under Senate Bill 820 (SB-820), which Gov. Jerry Brown signed into law on September 30, 2018, such confidentiality provisions are no longer permitted in California, starting on January 1, 2019.
Accusers May Still Protect Their Confidentiality
Even prior to SB-820, there were already limits imposed by California law on certain types of civil settlements. For instance, it is already against the law to use a confidentiality agreement to prohibit the “disclosure of factual information” related to a possible felony sex crime, or an act of childhood sexual abuse, sexual exploitation of a minor, or sexual assault against an elder or dependent adult. What SB-820 does is effectively add other types of sexual assault and sexual harassment to this list.
To be clear, California law defines “sexual harassment” as making any kind of “sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe.” Sexual harassment is also not limited to traditional employer-employee relationships. It can occur in any type of “business, service, or professional relationship.”
Under SB-820, if an accused party chooses to settle a civil sexual harassment or sexual assault claim, the terms of the settlement may not include any provision prohibiting the disclosure of the accused party’s identity. In plain English, a company cannot use a settlement to shield an accused harasser from public exposure. However, the claimant may ask to have his or her identity shielded under the settlement. SB-820 permits this limited confidentiality provision, except in cases where a government agency or public official is a party to the agreement.
It should also be noted that SB-820 only applies to the disclosure of information related to the facts of the claim itself. The settling parties may still agree to keep the amount of any settlement confidential. And once again, SB-820 only applies to settlements entered into as of January 1, 2019.
Legislation Designed to “Empower Victims” to Come Forward
In a statement to the press, state Sen. Connie Levaya (D-Chino), the primary sponsor of SB-820, said, “For decades, secret settlements have been used by wealthy and well-connected perpetrators to offend repeatedly with no public accountability. This critical legislation will empower victims and offer them the opportunity to finally say #TimesUp to those that have hurt them.”
If you have been affected by sexual harassment in the workplace and would like to know more about SB-820 and other recent changes to the law may affect your rights, you should contact a qualified California employment law attorney right away.