The #MeToo/#TheyKnew era began in October 2017 with multiple revelations about Harvey Weinstein’s sexual harassment and assaults of various actresses. Those revelations were followed by the revelation that his predatory conduct was an “open secret” within the moviemaking industry, even if the public was not aware of it in part because of settlements with nondisclosure provisions. Over the following months, the revelations continued in Hollywood, and spread to the political arena. The Washington legislature responded with three bills limiting an employer’s ability to keep such allegations confidential.
In a new section added to RCW 49.44, employers are prohibited from requiring as a condition of employment that employees sign nondisclosure or waiver agreements, or any other agreement that prevents an employee from disclosing sexual harassment or assault in the workplace, at work-related events coordinated by the employer, between employees, or between the employer and the employee away from the work premises. Any such agreements are against public policy and unenforceable.
This particular new section does not apply, however, to settlement agreements between an employer and a current or former employee alleging sexual harassment. Likewise, it does not apply to human resource staff, supervisors, or managers when they are expected to maintain confidentiality as part of their assigned job duties, nor does it apply to individuals participating in an open and ongoing investigation of sexual harassment who are requested to maintain confidentiality during the pendency of the investigation.
Finally, this bill specifically makes it a violation of RCW 49.60 (the Washington Law Against Discrimination) to discharge or otherwise retaliate against an employee for disclosing or discussing sexual harassment or assault occurring in the workplace, at work-related events coordinated by the employer, between employees, or between the employer and the employee off the work premises.
“Sexual assault” refers to sexual contact (any touching of a person's intimate parts for the purpose of gratifying sexual desire) or sexual behavior occurring without the recipient's explicit consent. “Sexual harassment” has the usual meaning, including unwelcome sexual advances, requests for sexual favors, and sexually motivated conduct or communication, if submission to the conduct is a term or condition of employment, is a factor in employment decisions affecting employment, has the purpose or effect of substantially interfering with the employee’s work performance, or creates a hostile work environment.
This bill is effective June 7, 2018.
Under this new bill, an agreement prohibiting a person from disclosing or producing evidence in a civil lawsuit or administrative charge regarding past sexual harassment or assault by a party is unenforceable and does not affect discovery or a witness's availability to testify. The bill does allow a court to enter orders keeping the identity of the alleged victim of past sexual harassment or assault from being publicly disclosed, unless the alleged victim consents to public disclosure.
The bill is effective June 7, 2018, but will apply to any lawsuit or charge pending as of the effective date. Generally, most agreements in use already allow disclosure of such allegations “if required by law,” which would include in future discovery in other lawsuits or agency actions, so this new bill may have minimal practical impact.
Finally, the third bill in the trilogy actually applies to all types of discrimination and harassment, not just sexual. This bill declares provisions in employment agreements that waive an employee’s right to publicly pursue a cause of action for discrimination in a court or administrative agency, or to require an employee to resolve discrimination claims in a confidential dispute-resolution process (such as arbitration), to be against public policy and unenforceable.
What do these three bills mean in practice?
Confidentiality provisions can still be included in settlement agreements, although employers should remember that such provisions won’t prevent disclosure of the employee’s allegations through discovery in a subsequent action, either by this employee or by another employee.
Likewise, it is clear that except for HR and management employees, an employer cannot prohibit employees not involved in a currently ongoing investigation from disclosing or discussing allegations of work-related discrimination or harassment, and any discipline or termination for such disclosures or discussions will expose the employer to potential lawsuits for retaliation.
The biggest uncertainty is whether agreements requiring employees to resolve disputes through private arbitration can be enforced as to claims of discrimination or harassment. To the extent these bills prohibit mandatory arbitration of claims (in lieu of filing a lawsuit or agency charge), they are likely preempted by the Federal Arbitration Act and cannot be used to void arbitration requirements. Until a court decides this issue, however, employers that require arbitration of employment disputes should specifically mention that they are under the Federal Arbitration Act, but also be aware that beginning June 7, 2018, such provisions may not be enforceable as to discrimination or harassment claims.
- Read our April 6, 2018 article on the Washington Gender Equity Act—2018 Washington Gender Equal Pay Act Amendments: Same Pay for "Similar" Jobs
- Read our April 6, 2018 article on new Washington bills affecting job applications, protected categories, “safety accommodations” to victims of domestic violence—A Potpourri of New Restrictions and Requirements for Washington Employers