San Francisco Chronicle: Ban agreements that silence workers from exposing sexual harassment

October 12, 2018

From the Hollywood casting couch to the halls of our state Capitol, it has been a year of trauma and vindication for countless women who came forward to say, “me too.” We used our voices to heal, to help others, to seek justice, and to demand change. Now, we will soon find out if it our governor will sign real remedies into law.

Senate Bill 1300, by state Sen. Hannah-Beth Jackson, D-Santa Barbara, sits on Jerry Brown’s desk awaiting his signature. The bill corrects subtle but significant flaws in our state’s sexual harassment laws. One aspect in particular targets the heart of what this movement has been about: breaking the silence.

SB1300 would ban the practice of requiring employees to sign non-disparagement agreements that would prevent them from exposing unlawful acts that take place at work, including sexual harassment. In many cases, these contracts threaten large monetary penalties for breaches. Often the employees most affected by these contracts are in low-paid jobs, are non-English speakers and have other barriers that already make it difficult for them to come forward.

As more companies worry about their reputations in a world of anonymous review sites and viral media, nondisparagement agreements have become more prevalent.

Not too long ago, one such contract that sought to shield the CEO of a major Los Angeles retailer was leaked to the press. Any employee who made disparaging statements about the CEO or the employer (even if they were truthful) would face a $1 million penalty. At the risk of being sued for large sums of money, most workers feared speaking out about misconduct.

In today’s workplace, employees are routinely presented with confusing legal documents — upon hire, to receive a bonus, or just because the company is “updating” their employment policies — that create a legal gantlet for workers, and insulate companies from public scrutiny and legal liability. Some workers find that they have signed a “release of claims” agreement that effectively stripped them of any right to pursue sexual harassment claims. Faced with this reality, we ask: What purpose do our laws serve if they can simply be signed away?

SB1300 will fill legal gaps through which many vulnerable workers fall. It will ensure that employees are not required to sign away their ability to speak out or seek legal recourse. It will also provide guidance to courts on the legal standards for sexual harassment claims and ensure fairness and consistency in how these cases are decided. It will compel employers to protect workers from harassment by third parties such as clients and customers and will provide a level of financial protection to some victims whose claims may fail in court, unless the court finds the action was frivolous.

California should take the lead in the national charge to end sexual harassment in our workplaces. SB1300 would be a good place to start.

Adama Iwu is a co-founder of the We Said Enough movement that exposed pervasive sexual harassment in California government. Actor Rosanna Arquette was one of the first women in Hollywood to share her story and speak out against Harvey Weinstein’s sexual harassment and threats of retaliation.

https://www.sfchronicle.com/opinion/openforum/article/Ban-agreements-that-silence-workers-from-exposing-13256917.php