Will the SB 820 Bill End the Culture of Silence?
Published: Tuesday, June 19, 2018
2018 has been an active year in state legislatures across the country, spawning numerous bills designed to increase access to justice victims of sexual harassment. Multiple bills are currently pending in the California legislature with little opposition.
Senator Connie Leyva (D-Chino) introduced SB 820. Called the “Stand Together Non-Disclosure Act” (STAND), it would render void as against public policy any provision in a settlement agreement (entered on or after January 1, 2019) that prevents “the disclosure of factual information related to [a civil] action” involving sexual assault, sexual harassment, sex discrimination, or failure to prevent sex-based harassment and discrimination. The STAND Act was passed by the Senate on May 21, 2018, and is now before the Assembly. Senator Leyva stated:
“As we have clearly seen over the last few months, secret settlements serve one primary purpose: to keep sexual predators away from the public eye and continuing to torment and hurt innocent victims…SB 820 will not prevent people from mutually agreeing to settle, but it will simply prevent the perpetrator from requiring the victim to remain silent about the harassment as a condition of settlement. Everyone deserves to live and work free from sexual harassment, assault and discrimination. The STAND Act helps to end the curtain of secrecy that has existed for far too long.”
For the many interest groups supporting this legislation, the ability of alleged victims of sexual harassment to speak out after reaching a settlement will discourage employers from harboring repeat offenders or choosing a secret payoff over changing their corporate culture. Victims will also not face the Hobson’s choice of either signing an NDA or engaging in protracted litigation with uncertain results.
SB 820 only regulates settlements reached after a lawsuit has been filed in “court.” In other words pre-filing settlements are not covered by the bill. That loophole is probably closed by another bill currently pending in the legislature, AB 3109. AB 3109 would make unenforceable any contract or settlement agreement that restrains a party’s right to testify about alleged criminal conduct or sexual harassment. Assuming both of these bills pass in their current form, together they will go a long way to ending the culture of silence that protected predators such as Bill Cosby and Harvey Weinstein.
Importantly SB 820 allows victims to request a non-disclosure agreement in certain circumstances. [A victim isn’t allowed to have a nondisclosure agreement if the defendant is a government agency or public official.] This is important to protect victims of sexual harassment who wish to maintain their privacy and not have their name and face plastered all over social media. There are ways defendants could use this to extract settlements so how far this protection will really go in the real world remains to be seen.
There are at least three other pending bills that could bring about needed change.
AB 1867 would require employers with 50 or more employees to retain records of all internal employee sexual harassment complaints for ten years, and would allow the Department of Fair Employment and Housing (DFEH) to seek an order compelling non-compliant employers to do so.
SB 1300 would amend the Fair Employment and Housing Act (FEHA) to require a plaintiff who alleges an employer failed to take all reasonable steps necessary to prevent discrimination and harassment to show: (1) the employer knew the conduct was unwelcome, (2) the conduct would meet the legal standard for harassment or discrimination if it increased in severity or became pervasive, and (3) the employer failed to take all reasonable steps to prevent the same or similar conduct from recurring.
This bill would also prohibit an employer from requiring a release of claims or rights under FEHA, or a nondisclosure agreement or other agreement not to disclose unlawful acts in the workplace, in exchange for a raise or a bonus or as a condition of employment or continued employment. This bill would further require employers, with five or more employees, to provide two hours of sexual harassment prevention training, including bystander intervention training, within six months of hire and every two years thereafter to all California employees. Lastly SB 1300 will prohibit a prevailing defendant from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or totally without foundation when brought or that the plaintiff continued to litigate after it clearly became so. This last provision will encourage plaintiffs [and plaintiff’s attorney] to bring creative causes of action for conduct that falls outside of current statutory law.
SB 1343, which closely resembles SB 1300, would require employers with five or more employees to provide at least two hours of sexual harassment training to all employees by 2020 and then once every two years thereafter. SB 1343 would also require the DFEH to publish on its website a two-hour interactive online training course on prevention of sexual harassment in the workplace.