Measures would ban settlements barring victims from testifying about abuse or obtaining future employment; update legislative workplace records laws
SACRAMENTO—Assemblymember Mark Stone (D-Monterey Bay) has introduced two measures to protect victims of and witnesses to workplace harassment from employer practices that keep troubling incidents secret from the public and discourage employees from reporting problems.
“In the Legislature and other workplaces in California, victims and witnesses of harassment have a legitimate fear of losing future employment opportunities or even their whole careers if they attempt to seek justice,” said Stone. “This pair of bills helps protect individuals who have so much to lose just by trying to do the right thing.”
AB 2032, authored by Stone and his colleagues on the Assembly Judiciary Committee, improves the transparency of legislative records while protecting the privacy of victims and witnesses of discrimination or harassment. Under the Legislative Open Records Act (LORA), legislative records are required to be open to inspection by the public at all times. Yet LORA currently states that broad classes of documents, including “personnel records” and “records of complaints to or investigations conducted by” the Legislature, are not required to be made available to the public for inspection. This necessary measure creates transparency by requiring the release of certain records related to complaints of harassment, discrimination, or other misconduct by a legislator or high-level employee if the complaint is found to be true, discipline is imposed as a result of the complaint, or there is reasonable cause to believe that the complaint is well-founded. Further, it clarifies that the Legislature may publicly disclose additional records by persons who are not legislators or high-level employees. It also specifically allows the Legislature to release its records to a law enforcement agency that is conducting a criminal investigation. The bill protects individual privacy by creating a rebuttable presumption that information about the accuser, complainant and any witness must be redacted from the released records, unless the public interest served by making the information public clearly outweighs the public interest served by not disclosing that information.
AB 3109, the other measure authored by Stone, targets two pernicious types of provisions within settlement agreements that prohibit an individual from speaking about an issue related to a workplace harassment settlement, and those that restrict an individual’s right to seek or keep employment following a settlement. The below examples illustrate the need for the measure:
- Voiding enforcement of prohibitions on testifying: American Olympic gymnast McKayla Maroney was subject to a $100,000 fine for testifying in a criminal trial against Larry Nassar, a team doctor who sexually abused her (along with several others) when she was 13 years old. Maroney's settlement with the US Gymnastic Association (USGA) required her to maintain public silence about the abuse. After Maroney brought suit in a California court to challenge that provision so that she could testify in Nassar's criminal trial, the USGA agreed that it would not enforce the agreement if she testified. However, USGA could have enforced the terms of agreement and Maroney would have been subject to the fine. While public pressure eventually caused the USGA to waive its right to enforce the agreement, less prominent plaintiffs might not have been as fortunate. AB 3109 ensures that such silencing provisions in settlement agreements would not be enforceable.
- Voiding enforcement of agreements to give up employment opportunities: In Brown v. State Personnel Board (2012), California State University, Fresno (CSUF) police officer Auwana Brown filed a sexual harassment suit against the CSUF police chief. According to the terms of her settlement, she was barred from working for CSUF and from working anywhere within the CSU system. Such settlements create an atmosphere that discourages victims and witnesses from coming forward at the risk of losing current or future employment opportunities.
The measures are expected to be referred to the Assembly Judiciary Committee for consideration in the next two months.
Contact: Arianna Smith