State of the States: Sexual Harassment Measures Continue to Advance

August 03, 2018

Workplace harassment-related measures continue to percolate despite most legislative sessions around the country having wrapped up, with bills being considered in California and the District of Columbia and one California bill having been signed by Governor Jerry Brown (D).

Under the new California law, employee and employer communications regarding sexual harassment will be considered privileged and therefore not subject to defamation claims as long as the statements were not made with malice.  According to the most recent WPI State of the States Report, the scope of this privilege extends to an employer's statement that it would not rehire an applicant based on the employer’s determination that the former employee committed sexual harassment.  The law, AB 2770, will take effect on January 1, 2019.

Other harassment-related bills being considered include: 

  • California: AB 3109, which would make any contract or settlement agreement void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.  The proposal has passed the state assembly and a senate committee.

  • California: SB 820, which focuses on nondisclosure clauses in settlement agreements.  The measure would prohibit provisions in a settlement agreement that prevent the disclosure of factual information relating to claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, unless a claimant requests the inclusion of such a provision.  This bill has passed the state senate and an assembly committee.

  • District of Columbia: B22-0907, which would prohibit employers from requiring employees, as a condition of their employment, to enter into nondisclosure agreements that prevent them from disclosing factual information related to claims alleging misconduct.  The bill would, however, allow agreements that prevent the disclosure of settlement amounts or, at the claimant’s request, the claimant's personally identifying information.

Looking ahead: Continued focus on workplace sexual harassment measures, particularly those regarding nondisclosure agreements and arbitration, will continue at the state and local level into the next legislative session—meaning, potentially, an increasingly large and complicated policy maze within which employers must navigate.