Washington State Bars Use of NDAs, Arbitration Clauses in Sexual Harassment Cases

Washington State Bars Use of NDAs, Arbitration Clauses in Sexual Harassment Cases

Washington Governor Jay Inslee on Wednesday signed a suite of legislation that will make it illegal for employers to use non-disclosure agreements and other contractual provisions to stop employees from reporting or discussing sexual harassment and assault in the workplace, The Hill reports:

One of the bills Inslee signed would prohibit employers from requiring nondisclosure agreements that would stop individuals from speaking out about sexual assault and harassment in the workplace. Another will prevent nondisclosure agreements from barring employee testimony in civil lawsuits relating to assault or harassment claims. That bill also allows those bringing the suits to conduct discovery on previous harassment claims.

Inslee also signed a new law voiding employment contracts and arbitration agreements that preclude an employee from filing assault or harassment complaints outside their companies.

Washington is the first state to take this kind of action in the wake of the #MeToo movement that revealed the still-high prevalence of sexual harassment and misconduct in the American workplace, including the statehouses in Olympia and other capitals.

Bipartisan legislation has also been introduced in the US Congress that would prohibit the enforcement of mandatory arbitration clauses on employees who come forward with sexual harassment claims. These clauses, already controversial in their own right, are increasingly seen as impediments to sexual harassment reporting that silence victims and protect harassers.

Non-disclosure agreements are also being scrutinized for their use as a tool for helping workplace harassers avoid accountability. Hollywood producer Harvey Weinstein, whose alleged sexual misconduct came to light last year, had many of his victims sign NDAs after settling harassment claims. The Weinstein Company lifted these agreements this week. The use of NDAs is also a focus of an ongoing inquiry by the Women and Equalities Committee of the UK Parliament into the problem of sexual harassment. That inquiry is expected to recommend regulatory changes barring the enforcement of these agreements in harassment cases.