The growing national conversation on sexual harassment in the workplace and the #MeToo movement has focused new attention on confidentiality clauses in employment and settlement agreements, particularly for victims of sexual harassment. Last week, California State Senator Connie M. Leyva joined the growing chorus of state lawmakers calling for restrictions on confidentiality clauses with the introduction Senate Bill 820. Arizona, New Jersey, New York, Pennsylvania, and Washington are also considering similar bills to restrict enforceability of confidentiality provisions that limit disclosure of information regarding sexual harassment, and in some cases, other forms of discrimination.
Each state has taken different approaches to restrict confidentiality clauses in settlement agreements concerning claims of sexual harassment. For example, California’s Senate Bill 820 takes into consideration that an individual asserting a sexual harassment claim may want confidentiality and provides that a confidentiality provision is permissible if it is included “upon the request of the claimant.” The Pennsylvania bill, Senate Bill 999, explicitly permits confidentiality of both the identity of the person who reported harassment and the monetary amount of any settlement, but bars provisions that “prohibit the disclosure of the name of any person suspected of sexual misconduct.”
A unique feature of the California bill is that it applies only to settlement agreements entered into after a lawsuit has been filed in court. The bill would therefore only prevent confidential settlements in cases where a certain amount of factual information is already in the public record, and have no effect on the types of pre-suit confidential settlements which have been featured in the news, such as those entered into by Harvey Weinstein with actor Rose McGowan and his former assistant Zelda Perkins.
Other states’ proposed legislation covers confidentiality or nondisclosure agreements that an employee may be asked to sign at the outset of their employment, in addition to settlement agreements. Washington’s Senate Bill 5996 prohibits employers from requiring employees to agree to certain terms “as a condition of employment.” This language suggests the bill is focused on nondisclosure provisions in employment contracts rather than in settlement agreements. However, the restriction could apply to settlement agreements reached with employees who assert and settle claims during their employment, rather than after termination, if the settlement provides that the employee can later be terminated for breaching confidentiality. Similarly, New Jersey’s Senate Bill 3581 restricts certain provisions in “any employment contract or agreement.” This may apply to settlement agreements, but could be interpreted to exclude them. New York’s Senate Bill 6382 broadly covers “any contract or agreement” but includes a specific provision preventing waiver “of any substantive or procedural right or remedy relating to a claim of discrimination… arising after the waiver is made.” These provisions preventing prospective waiver may be covering old ground: a number of courts have already held that an employee cannot prospectively waive his or her right to bring a claim of discrimination under Title VII. See e.g., Richardson v. Sugg, 448 F.3d 1046, 1053 (8th Cir. 2006); EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 616 (9th Cir. 1988); Williams v. Vukovich, 720 F.2d 909, 926 (6th Cir. 1983).
Although all of the bills share a common focus, differences in the specific language and structure of the bills will produce varying results if any legislation is passed. As the momentum behind restricting confidentiality provisions continues to grow, employee advocates should be mindful of the various approaches undertaken and consider which if any best protect the interests of their clients.
Correia & Puth is dedicated to the representation of employees who have suffered sexual harassment at work, whether by co-workers, supervisors, customers or clients. Correia & Puth also fights for employees who have experienced retaliation for reporting sex harassment and sex discrimination. If you have experienced workplace sexual harassment contact us here or call Correia & Puth at 202-602-6500. We fight for the rights of employees to be free from sex harassment and to obtain the strongest possible resolution for clients, whether through litigation or settlement. Correia & Puth devotes its practice to eliminating illegal employer conduct wherever possible and obtaining justice for our clients.