On January 1, 2022, a California law went into effect that, among other developments, prohibits nondisclosure agreements (NDAs) that keep employees quiet about the discrimination they have suffered in the workplace. The state legislature passed the bill, known as SB 331 or the Silenced No More Act, on October 7, 2021.
What Does the Silenced No More Act Do?
SB 331 took a preexisting bar on nondisclosure provisions for sexual harassment and other forms of sex discrimination and expanded it to all forms of discrimination covered by the California Fair Employment and Housing Act (FEHA). While the passage of SB 331 is cause for celebration, it also begs the question: Why was the prohibition on overly broad confidentiality agreements so limited in scope in the first place?
The STAND Act
In 2018, the California legislature enacted the Stand Together Against Non-Disclosure Act (STAND). The law banned settlement agreement provisions that demand employees be silent about sexual harassment, sexual assault, other forms of sex discrimination, and related retaliation. The legislation, passed in response to the #MeToo movement, was rightfully hailed as a significant victory. The STAND Act took away NDAs as a powerful tool of abusers, who all too often silence their victims.
However, such tactics are not unique to sexual harassment. Employers bully into silence employees who have experienced all forms of discrimination. SB 331 finally appreciates this fact by ensuring workers can talk about endured mistreatment as it relates to any protected characteristic.
Have Other Laws Singled Out Sex Discrimination?
California was not alone in elevating sex discrimination in its conferral of legal rights, but no other states have yet followed the trend of extending these protections. For example, states like Washington, Tennessee, and Virginia limit the scope of NDAs only with regard to sexual harassment and no other varieties of harassment and discrimination. Similarly, the otherwise employee-friendly New York City Human Rights Law grants a three-year statute of limitations for administrative complaints involving gender harassment, in contrast to the one-year period available for other claims. In March 2022, President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. This new law carves out sexual harassment and assault claims from forced arbitration.
Our antidiscrimination laws have an unfortunate history of pitting forms of oppression against each other. Take for example the muddled story of how sex was added to Title VII of the Civil Rights Act of 1964. Congressman Howard Smith purportedly introduced this protected basis “[n]ot necessarily because he was interested in rooting out sex discrimination in all its forms, but because he may have hoped to scuttle the whole Civil Rights Act and thought that adding language covering sex discrimination would serve as a poison pill.” For a fuller account of Title VII and sex discrimination’s legislative history, see this article by Vicki Schultz. And ironically in the education context, sexual harassment has been singled out for selectively worse treatment than discrimination on other protected grounds.
This trend of enacting antidiscrimination protections is welcomed, but the partial scope of these protections raises concerns.
Why Legislatures Must Continue to Strengthen Discrimination Laws
To start, discrimination, no matter the basis, can be devastating to the individuals impacted. It is also harmful to our social fabric. Legislatures must enact far-reaching protections for all workers without implicitly ranking the importance of different protected characteristics.
While the #MeToo movement made tremendous progress in exposing the pervasiveness of sexual harassment in the workplace and reducing the stigma of speaking out about abuse, other social movements, such as Black Lives Matter, have made similar strides without achieving the same legislative success. Such a disparity in enacting legal developments underscores power differentials, stemming from uneven privilege, within the civil rights space that we should strive to eliminate.
Moreover, privileging workplace protections for gender discrimination erases the overlapping nature of harms experienced. Employees often belong to several protected classes based not only on their gender but also their race, age, sexual orientation, and/or disability status, to name only a few. Because of their intersectional identities, people experience intersectional workplace discrimination.
As some courts have recognized, protected traits “do not exist in isolation,” and employment discrimination laws should not “permit plaintiffs to fall between two stools when their claim rests on multiple protected grounds.” For instance, Black women often face hair discrimination connected to their race and gender. Pregnant workers and new parents, as another example, can experience mistreatment stemming from their sex and disabilities (e.g., morning sickness or postpartum depression).
Under California’s prior law, what aspects of such individuals’ workplace abuse would an NDA cover? What could the employees still discuss? Because neither individuals’ identities nor employers’ discrimination are discretely compartmentalized, anti-discrimination laws must take more expansive approaches to provide full protections to employees and to provide clarity for workers and workplaces alike.
Our Discrimination Attorneys Proudly Defend the Rights of Workers Across the Nation
The Silenced No More Act is an important step towards providing employees with comprehensive protections that address and combat workplace discrimination. Other jurisdictions should follow California’s lead in curbing NDA overreach for all forms of prohibited discrimination.
At Sanford Heisler Sharp our team of seasoned employment law attorneys fiercely advocate for the rights of those who have been subjected to discrimination in violation of state and federal laws. We frequently represent employees who have suffered discrimination based on their race, age, disability, and for requesting time off under the Family and Medical Leave Act. Reach out to us today if you need help taking legal action against your employer.