Even though the #MeToo movement came into the national eye in 2017, there is still a lot of work being done throughout the United States to combat common business practices that have long harmed women and minority groups. Earlier this month, California took another step forward when Governor Newsom signed the "Silenced No More Act" into law.
Quick #MeToo Refresher
#MeToo is the hashtag used to provide an umbrella of solidarity for millions of people to come forward over the last four years with their stories surrounding sexual harassment and assault. Many of these stories did not focus on assault in general, but on assault in the workplace, highlighting a predatory work culture for women. The #MeToo hashtag was part of the Time’s Up movement, which was galvanized by Hollywood celebrities in response to "the Weinstein effect". Read our post for more information on #MeToo, Time’s Up, and Legislation behind the movement.
What is the STAND Act?
SB 820, also known as the STAND (Stand Together Against Non-Disclosure) Act, was passed in California in 2018 as a sort of response to the #MeToo movement. This legislation aims to address "secret settlements". Secret settlements are often used to cover up cases of sexual harassment involving high-profile personnel at companies or within industries (think everyone from CEOs, to board members, to industry moguls). The STAND Act prohibits the use of confidentiality provisions in settlement agreements for claims based on sex. There are conflicting opinions in the business world on how most commonly non-disclosure agreements (NDAs) are used. Some people argue NDAs are used to protect repeat offenders and preserve a hostile workplace while also giving resources to people who were harassed or abused. Others say employers utilize NDAs to resolve claims early and preserve business resources, even if claims are perceived by the company to be meritless.
This legislation faced a decent amount of opposition as NDAs often can provide a "quick" resolution for companies. Prohibiting NDAs to be used in this these types of instances remove business's ability to address issues out of the public eye. Many believe this change to how companies deal with "sensitive" claims will now require them to bring people to court in an attempt to protect their company's integrity.
Although the STAND Act has allowed employees in California to discuss experiences relating to sexual harassment in the workplace publicly, many argue it did not go far enough to protect people at risk. The act only addressed settlements based on sexual harassment, but as we all know, workplace harassment and discrimination can go much further than harassment solely based on sex. After the STAND Act was passed, employers could still require NDAs for cases involving all other forms of harassment. If there was a settlement involving claims of intersectional discrimination (think - discrimination on multiple bases such as sex and race or sex, and religion), the claimant could only speak publicly about the discrimination they experienced that was tied to their sex. Any other harassment they experienced was technically prohibited from being discussed in public if they had an NDA in place.
What is the "Silenced No More Act"
SB 331, known as the "Silenced No More Act", was introduced by Sen. Connie Leyva and Ifeoma Ozoma. Ozoma helped prompt this legislation after she spoke out about her and another co-worker, Aerica Shimizu Banks, experience while working at Pinterest with racism and pay discrimination in June 2020. Their experience highlighted the gap in the STAND Act; they were protected when speaking about their allegations of gender discrimination, but, as Black women, they were technically not protected when speaking out about their race-related experiences.
The Silenced No More Act is a broad prohibition of non-disclosure clauses in settlement agreements involving workplace harassment or discrimination on any protected groups. The protected groups included in the legislation are: race, color, national origin, religion, age, sex, sexual orientation, physical or mental disability, and reprisal.
After this law takes effect (January 1, 2022) if a worker chooses to speak about an experience, companies will be prevented from enforcing nondisclosure agreements and non disparagement clauses. Any reports of discrimination based on race, religion, sexual orientation, gender identity, ancestry, disability, and age will be allowed to be spoken about publicly, if the person chooses to. The new law nullifies and makes void any provisions entered on or after January 1, 2022 preventing or restricting an employee from disclosing "factual information" on any type of harassment, discrimination, or retaliation. The bill states "In determining the factual foundation of a cause of action for civil damages a court may consider the pleadings and other papers in the record, or any other findings of the court."
SB 331 also has language prohibiting requiring non-disparagement agreements that deny an employee’s right to disclose information about unlawful acts in the workplace as a condition of employment or continued employment. The legislation states these agreements are prohibited unless the agreement includes a specific carve-out providing for the employee’s right to discuss workplace conduct the employee has “reason to believe” is unlawful. Any agreement that has the purpose or effect of denying an employee the right to disclose information about those acts will be unenforceable. Severance agreements which follow the same vein are also prohibited.
The California State Legislature and Governor Newsom have now spoken: California workers should absolutely be able to speak out — if they so wish — when they are a victim of any type of harassment or discrimination in the workplace. - Senator Leyva.
Conclusion
This legislation is particularly interesting to me as someone who works in tech. California is one of the largest tech hubs of the world. Much of the reporting surrounding this new legislation focuses on the enormous implications it can have for the tech industry within the state. The tech industry is known for using extremely restrictive NDAs to cover up toxic cultures of harassment and discrimination. This legislation only protects workers who live in California, so it will be interesting to see what companies do to adapt and address to this new restriction within the state.
While this legislation is only valid for workers in California, Ozoma has plans to work on expanding the ideas within it across the country. Ozoma's experience led her to start Earthseed, which released the Tech Worker Handbook. The purpose of this handbook is to provide a collection of resources for tech workers who may be considering speaking out on issues that are in the public interest.
Cover Photo by Romain Dancre on Unsplash
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