In recent years, California lawmakers have taken on sexual harassment and assault with a series of changes to state law. In the wake of revelations about how institutions and companies keep sexual misconduct and abuse under wraps—from the Catholic Church sex abuse scandal to Harvey Weinstein—the California legislature has largely taken confidentiality agreements surrounding sexual misconduct off the negotiating table. The legal developments aim to shed light on sexual harassment and violence by preserving the ability of victims to speak about their experiences, despite a settlement. Here is what you need to know:
1) California law prohibits confidentiality in settlement agreements in civil cases where the underlying conduct could be criminally charged as a felony sex offense. The prohibition applies not only to cases related to workplace sexual assault, but to all civil cases. Sexual conduct that could prosecuted as a felony includes (among other acts): rape, and sexual assault where the perpetrator used violence, restrained the victim, or fraudulently deceived the victim into believing the touching was for a professional purpose.
Where the conduct you allege rises to the level of felony sexual assault, your attorney could be subject to professional discipline by the California State Bar for demanding confidentiality or advising you to agree to confidentiality in a settlement agreement.
2) California law limits provisions in settlement agreements that prevent disclosure of allegations related to sexual harassment, sexual assault, sex-based discrimination, and retaliation. If you have filed a complaint in court or with an administrative agency (such as California's Department of Fair Employment and Housing), the company cannot require you, as a condition of settling your claims, to stay silent about the facts described in your complaint.
An exception may be made where the survivor of sexual harassment wishes to maintain the confidentiality of their identity. At the survivor’s request, the settlement agreement can shield the survivor’s identity and facts that could lead to discovery of her identity. It is also permissible for settlement agreements to require the parties’ confidentiality about the dollar figure of the settlement.
If you have experienced sexual assault or sexual harassment or sexual assault in the workplace, contact us today for a free consultation.
Lauren Teukolsky is the founder and owner of Teukolsky Law, A Professional Corporation.