Directly associated with the #MeTooMovement and former movie mogul Harvey Weinstein is a section of the California Labor Code titled “Sexual Harassment – Professional Relationships”, whereby SB 224 expands its list of personal liability for sexual harassment that occurs in the course of a business, service or professional relationship. Joining bosses and co-workers are elected officials, lobbyists, investors, directors and producers. The law is in part a response to reports by female Silicon Valley entrepreneurs detailing lewd remarks and unwanted sexual advances by male venture capitalists. And it’s also in response to Hollywood.
A non-disparagement clause typically says the employee agrees not to criticize or ridicule, say anything disparaging or demeaning, about the employer, its products or employees that would likely damage them or the company. Such agreements, often in fine print in hiring agreements, forbid workers from publicly disclosing or filing a claim over labor violations such as sexual harrassment or discrimination. Harvey Weinstein used nondisclosure agreements as a secret weapon to silence his accusers, reported the Wall Street Journal
An employer could conceivably try to discourage employees from disclosing the facts underlying a sexual harassment settlement by including such agreements. But the new Senate Bill 1300 forbids employers to require workers, as a condition of employment or in exchange for a raise, to sign “non-disparagement agreements.”
The new Senate Bill 1300 is also significant because it reverses what’s been known as the “one free grope” standard, or “a free pass on unlawful behavior” as Sen. Hannah-Beth Jackson and author of the bill, described it. Previously, California law required sexual harassment to be “severe or pervasive,” and a single incident was not illegal.
On the other hand, nondisclosure agreements can help protect survivors’ privacy. Because the agreements are mutually binding, they prevent employers from harming the reputation or future employment prospects of a person with whom they settled.
Senate bill 820 is a new law that forbids companies from requiring secrecy, although a victim can still choose to keep his or her identity private. University of California, Berkeley law professor Catherine Fisk told the San Francisco Chronicle that “Transparency is important because we see examples of serial harassers and their employers settling one claim after another…. But the bill “might result in smaller settlements or make it harder to settle cases because companies pay for confidentiality to avoid reputational costs.”
This law does not discriminate from public and private employers, including the Legislature. When she introduced SB820, California state Senator Connie Leyva stated that “secret settlements serve one primary purpose: to keep sexual predators away from the public eye and continuing to torment and hurt innocent victims”. Leyva said that Weinstein and former Fox News Chairman and CEO Roger Ailes were inspirations for her bill. They both reportedly settled multiple sexual harassment claims by women who agreed to keep them secret. Add to the fray Bill Cosby, the Catholic Church, Doctor Larry Nassar, Dr. George Tyndall…
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Lastly, the Sexual Assault Statute of Limitations (AB 1619) has been extended seven years. An individual may file a civil action for damages up to 10 years after the alleged assault or three years after the plaintiff discovered or reasonably discovered injury as a result of the assault, whichever is later.
Legal experts predict that 2019 will see more claims of sexual assault, sexual harassment, gender discrimination or related retaliation.