In California, trying to end the silence in the wake of #MeToo
California lawmakers are speaking up about sexual harassment and pushing to make it easier for victims to take their stories public.
In recent months, the #MeToo movement has provided a platform for victims of sexual assault and harassment to speak up about their experiences. Many of those allegations were resolved behind closed doors, with settlements prohibiting victims from speaking publicly about the matter and allowing perpetrators to go on unexposed and unpunished.
New legislation in California could sharply reduce the use of non-disclosure agreements and similar legal tools that can tie victims’ hands.
“We just want to make sure the perpetrator is named,” said state Sen. Connie Leyva, a Chino Democrat.
In January, Leyva introduced Stand Together Against Non-Disclosures, also known as the STAND Act, with the goal of banning confidentiality provisions in settlement agreements involving sexual offenses and discrimination.
Her measure would apply to public and private employers, and give plaintiffs more power to decide whether information should remain confidential.
Backed by the California Women’s Law Center and Consumer Attorneys of California, the legislation would also allow courts to consider those settlements when evaluating factual evidence during a trial.
Some details of sexual harassment cases—such as settlement amounts—can still remain private, but the basic facts should be made public, said Jacqueline Serna, legislative counsel at Consumer Attorneys of California.
“We’ve never been opposed to keeping the numbers confidential,” she said. “However, the underlying facts are important for the public to know so that they can identify where there’s a pattern of repeat offenders that women and men should know about.”
“Right now,” she said, “we never find out about it because it’s always kept secret.”
Serna’s group approached Leyva last year about carrying a similar bill, but that one needed more work and was shelved. Public awareness stoked by the growing #MeToo movement made 2018 an ideal time to revisit the measure, Serna said.
“It’s all about timing,” she said.
In the aftermath of sexual-harassment accusations and settlements involving Hollywood mogul Harvey Weinstein, other states, too, are exploring such options. New York, for instance, is targeting contract provisions that waive people’s procedural rights to claims of discrimination and harassment. New Jersey is considering a similar measure, in addition to an effort to eliminate agreements that conceal information relating to discrimination claims.
While prohibiting non-disclosure agreements could make it easier for victims of sexual harassment and discrimination to speak out, the prospect has some businesses worried.
Evan Gibbs, an Atlanta employment lawyer at the firm Troutman Sanders, which has offices in California and elsewhere, handles lawsuits in which he mostly represents companies or their executives.
From where companies stand, he said, the agreements offer a guarantee that certain information will stay private. Without that guarantee, companies may be less interested in settling claims and making big payouts.
“Companies and individuals may settle the case without a non-disclosure provision but pay a whole lot less than if there was a non-disclosure provision in the agreement,” Gibbs said.
Some organizations see other threats to their interests—namely an increase in litigation, which is more costly and time-consuming than settling.
In a recent opposition letter, the California Chamber of Commerce joined several other associations in arguing that the STAND Act doesn’t actually protect victims. Rather, the groups say, it would primarily benefit trial lawyers while exposing employers to “a public presumption of guilt.”
“Elevating the confidentiality provision as more significant than the other contractual provisions in a settlement agreement interferes with the ability to settle these cases in an informal process and drives up litigation costs and fees,” the letter stated. “That only serves to benefit the trial attorneys.”
Non-disclosure agreements are also common in employment contracts, some of which require workers to waive their right to pursue harassment, discrimination and other labor claims in court or with a state agency. When a claim is made, it’s often handled within the company through confidential arbitration.
Assemblywoman Lorena Gonzalez Fletcher, a San Diego Democrat, hopes to attack the secrecy of sexual harassment by stopping forced arbitration. Her bill would stop employers from threatening, terminating or discriminating against workers if they refuse to waive their rights to take claims involving sexual assault, harassment, pay equity or discrimination to court.
Serna said that bill and Leyva’s “really are going at the biggest problems in the #MeToo movement that have come to light.”
California already has a law, passed in 2016, restricting confidentiality agreements in civil settlements related to felony sexual assault or sexual exploitation of a minor.
The Legislature has not been immune to sexual-misconduct allegations. In February, legislative leaders began making public some of their records on sexual harassment, detailing more than 30 substantiated cases involving elected or other high-level officials.
The confluence of factors is creating momentum in the statehouse for more laws aimed at supporting victims, said Barry Broad, a lobbyist and managing partner at Broad & Gusman, a Sacramento law firm. Broad represents the Screen Actors Guild, a supporter of Leyva’s bill and a sponsor of Gonzalez Fletcher’s.
“The Legislature is in the mood to try and tackle issues of sexual harassment,” Broad said.