As noted in several prior blogs, the #Metoo movement has been a primary focus of the Legislature this year. The Legislature held multiple informational hearings on the issue that focused on internal processes for Capitol staff, as well as strengthening protections in both the public and private sector for victims of harassment to feel comfortable coming forward and reporting any inappropriate conduct. While most bills have been generally applicable to both the private sector and public sector, there was a surprising exclusion for government in SB 820.
SB 820 is one of several bills that has been introduced this session to address confidentiality provisions in a settlement agreement for claims of harassment. Proponents of the bill basically argue that a victim should not be required to remain quiet about any allegations in order to settle a harassment claim, otherwise it could allow a serial harasser to continue the inappropriate conduct. However, the bill was amended in June to acknowledge that not every victim of harassment wants to be public about the issue and provided most victims with the ability to shield their identify. “Most victims” is the key. In the provision of the bill that allows victims to shield their identity, it specifically disallows this protection/right if a party to the settlement agreement is a public official or if the employer to the agreement is a government agency – see subdivision (c) . What does that mean exactly? If the victim is simply unlucky and happens to be harassed by a public official or an employee of a government agency, SB 820 prohibits the victim from protecting his or her identity. Eliminating confidentiality for a victim, especially when a public official is involved, could not be a bigger deterrent to a victim coming forward and reporting the inappropriate conduct.
This snafu in the language was recently discussed in an article titled #MeToo, But Maybe Not For You.”
The bill was passed by the Legislature on August 24th, despite this issue being raised on the floor, and is now awaiting action by the Governor.
Loren Kaye, President, California Foundation for Commerce and Education