California has a new law which enhances the protections of workers who have been the victim of any sort of discrimination. The law is commonly known as the “Silenced No More Act” and prohibits employers from inserting contractual provisions in settlement and severance contracts that prevent public disclosure of the discrimination. These provisions inserted into the settlement and severance contracts were typically called “nondisclosure” or “confidentiality” clauses.
Before the new law, it was very common for employers to insist upon nondisclosure or confidentiality if a claim of discrimination/harassment was settled before, during or after trial. For example, if there was a claim related to sexual or racial discrimination, the employer might settle for millions of dollars, but the victims would be banned from publicly — and often privately — talking about the discrimination. This allowed employers to, essentially, cover up the discrimination and harassment that was occurring in their places of work. Sure, the employer paid a lot of money, but some of that may have been covered by insurance and those costs were passed along to consumers.
More importantly for the employer, the nondisclosure provisions avoided reputational injury to the company. Reputation is important in this post-modern economy. In effect, employers with hostile and/or discriminatory workplaces were able to avoid public shaming.
To combat this problem, California passed the first version of the Silenced No More Act in 2016. That version of the law was specifically directed at sexual and gender-based harassment and discrimination and was a direct response to the #MeToo movement that started among Hollywood on-screen personalities.
Last year, California passed a much tougher version of the Silenced No More Act that goes into effect beginning in 2022. The new version applies to ANY type of harassment or discrimination on the basis of ANY protected class of workers. California bans discrimination and harassment based on protected employee classifications including:
- Race and color (including race-specific characteristics such as hairstyles)
- Religion, national origin, and ancestry
- Physical or mental disability
- Medical condition
- Genetic information
- Marital status
- Sex, gender, gender identity, gender expression, and sexual orientation (and gender-related medical conditions such as pregnancy status)
- Age (40 and over)
- Military and veteran status
- Political viewpoint
See California Fair Employment and Housing Act (“FEHA”). See Cal. Gov. Code, § 12900 et seq. (the “Act”). The Silenced No More Act also covers claims made with administrative agencies, not just claims that have been filed in civil courts.
Under the new version of the Silenced No More Act, employers can still require that the AMOUNT of the settlement be kept confidential. But employers CAN NOT require confidentiality and nondisclosure with respect to the facts surrounding the discrimination/harassment. The Act goes even further and mandates that the following language be added to severance, settlement, and similar agreements:
“Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”
Contact Our Experienced Attorneys
For more information or if you have been the victim of employment discrimination and/or harassment, contact the experienced attorneys at Guardian Litigation Group. We have the tools and legal experience necessary to protect you and bring your employer to justice. Our Mission is to provide unparalleled legal services for our clients.