In the aftermath of the Harvey Weinstein investigation and the #MeToo campaign, some lawmakers at the federal and state level are proposing legislation which they believe would protect and support the victims of sexual harassment. Their efforts have highlighted two types of employment agreements that businesses often require employees to sign before they are hired: Non-Disclosure Agreements (“NDAs”) and Arbitration Agreements.
NDAs typically prohibit an employee from disclosing a company’s confidential and proprietary information. Specifically, they protect the company by preventing employees from sharing information that could affect sales or benefit competitors. Critics claim that the way NDAs are written often leads employees to believe that they cannot speak about or even internally report harassment, including sexual harassment.
Arbitration Agreements require employees with claims against the company to submit to a private, binding dispute resolution process instead of going to court. What happens in arbitration is typically confidential, and therefore shields the company from the media and potentially negative publicity. Critics argue that requiring employees who suffer sexual harassment to submit to arbitration means that the bad acts of companies or their corporate officers are not made public in the way they should be, and limit the rights of victims of sexual harassment.
On December 6, 2017, federal lawmakers including Rep. Cheri Bustos (D-Ill.), Sen Kirsten Gillibrand (D-N.Y.), Sen. Kamala Harris (D.-Calif.), Sen. Lindsey Graham (R.-S.C.), Rep. Walter Jones (R.- N.C.), and Rep. Elise Stefanik (R.-N.Y.) introduced a bill referred to as the, “Ending Forced Arbitration of Sexual Harassment Act.” The bill, if enacted, would prohibit employers from enforcing mandatory arbitration agreements when an employee alleges workplace sexual harassment or gender discrimination under Title VII. The bill does not appear to prohibit an employer and employee who are already in a dispute about sex discrimination from agreeing to arbitration, nor does it appear to preclude private, confidential settlements of sexual harassment claims.
In May 2017, New York Democrat Sen. Brad Holyman (D-WF) proposed State Senate Bill S6382A, which is currently in committee. The bill would prohibit contracts waiving any substantive or procedural right or remedy relating to a claim of discrimination, non-payment of wages or benefits, retaliation, or harassment. The bill would also prohibit contracts that have the purpose or effect of concealing the details relating to a claim of discrimination, non-payment of wages or benefits, retaliation, or harassment, and prohibit retaliatory actions by any person or employer against an individual who refuses to enter into an agreement with such a waiver.
In the New York House of Representatives, Assemblywoman Nily Rozic introduced the Models’ Harassment Protection Act in November 2017. The State Act would require clients to provide models with the means and appropriate contacts for reporting a sexual harassment complaint and afford models other protections that they currently do not enjoy under New York law.
Also in November, Arizona State Representative Maria Syms (R-Paradise Valley) introduced Arizona House Bill 2020, which prohibits anyone from entering a confidentiality agreement that restricts the disclosure of factual information related to sexual assault or harassment, and would make it illegal to propose such an agreement where the allegations are aimed at an elected official. The bill will be read and voted on in 2018.
Georgia lawmakers have not proposed legislation that follows this trend. Georgia law is generally considered pro-employer and places a high value on freedom to contract. Laws limiting such freedom, such as laws which make NDAs or Arbitration Agreement unenforceable, are unlikely to be favorably received in the Georgia legislature.
Nationally, the legislation proposed at the federal and state level is being criticized for limiting freedom of contract and for singling out sexual harassment victims for special treatment, leaving behind victims of other forms of discrimination. Proponents of the legislation, meanwhile, argue that it is necessary to give the victims of sexual harassment a voice and ensure that their rights to justice are protected. The new year should shed light on the viability of this legislative trend.