A new California law, effective January 1, 2019 strongly limits a company’s power to enforce a settlement agreement “vow of silence” for employees who have been sexually harassed in the workplace.
Most cases settle, including sexual harassment cases. It could be after months or years of litigation, or before you’ve even filed a complaint, but it’s likely going to settle. Fast forward to the settlement agreement. Until 2019, nearly every settlement agreement would have a section that said something along the lines of the following (trigger warning: legalese. In fact, do yourself a favor and just skip this, because it can’t be used in sexual harassment cases any more. And it’s poorly written and boring):
“Mutual Non-Disparagement. Subject to applicable law, each of the Parties covenants and agrees that, during the Standstill Period or, if earlier, until such time as the other Party or any of its agents, subsidiaries, affiliates, successors, assigns, officers, key employees or directors shall have breached this Section, neither it nor any of its respective agents, subsidiaries, affiliates, successors, assigns, officers, key employees or directors, will in any way publicly disparage, call into disrepute, defame, slander or otherwise criticize the other Parties or such other Parties’ subsidiaries, affiliates, successors, assigns, officers (including any current officer of a Party or a Parties’ subsidiaries who no longer serves in such capacity following the execution of this Agreement), directors (including any current director of a Party or a Parties’ subsidiaries who no longer serves in such capacity following the execution of this Agreement), employees, shareholders, agents, attorneys or representatives, or any of their products or services, in any manner that would damage the business or reputation of such other Parties, their products or services or their subsidiaries, affiliates, successors, assigns, officers (or former officers), directors (or former directors), employees, shareholders, agents, attorneys or representatives.”
Take out the legalese, and this means: “We’ve settled. Now don’t talk about what happened to you at work.” We’re settling, and we’ll both go our separate ways, but you can never say anything about the sexual harassment you endured (or else you can face a hefty cash penalty). You can think of this as a “vow of silence” about the sexual harassment case Don’t talk about the flirting, don’t talk about the unwanted advances, definitely don’t talk about the unwanted touching, don’t talk about how your supervisor did nothing when you told him about it, don’t talk about how Human Resources did no investigation at all, just don’t talk about it.
For decades, no one blinked an eye about this. It was standard language in settlement agreements. But starting this year, it can’t be.
That’s because California passed Senate Bill 820 – to “prohibit and makes void any provision in a settlement agreement (entered into on or after January 1, 2019) that prevents disclosure of information related to civil or administrative complaints of sexual assault, sexual harassment and workplace harassment or discrimination based on sex.”
What does this mean? There’s no longer any “vow of silence” for an employee regarding workplace sexual harassment or discrimination based on sex. You can’t put that in the settlement agreement any more. And if it’s already in there, it’s “voided” – meaning it’s as though that provision doesn’t exist (vows of silence for amount paid in a settlement are still alright under the law).
I did hear an employer attorney comment that he felt that this would result in lowering the cash value of sexual harassment settlements. After all, part of the value of the settlement (from your company’s point of view) is that they can feel safe knowing that you can’t tell the world about what you suffered at the company (or if you do, you may be subject to liquidated damages, or a cash penalty). His point was, if the company knows that you’re out there talking about the case (or can be), they have less incentive to settle and the value of the settlement goes down.
I’m not so sure that’s correct. Employees who have suffered from sexual harassment have a wide range of perspectives. Some want to talk about what happened, even if they’ve personally settled with the company—they want to other people to know what’s going on at their workplace (or former workplace) so that it can’t happen to anyone else. Others would prefer never to think about what happened again, much less speak on it.
And in some cases, companies and bosses were taking advantage of employees’ relative lack of finances to leverage the settlement, including the provision to be silent on what happened. Maybe this is a bad thing! Maybe society shouldn’t allow companies to coerce silence from their victims.
The big thing change in the law seems to do is shift the fear of talking about sexual harassment from the employee to the employer. And this may be better overall for workers. After all: who should bear the fear of talking about sexual harassment in the workplace: the harasser, or their victim?