Washington State’s Strong Stance Against Sexual Harassment Secrecy

Washington State Sexual HarassmentIf you’ve been following our blog, you already know that Washington State had a busy legislative year for employment-related laws.  In addition to the expansion of the state’s Equal Pay law and the added protection of workers who are victims of domestic violence from employment discrimination, the state also enacted strong sexual harassment laws designed to encourage open discussion of the subject in the workplace and end the secrecy attached to sexual harassment claims.  In this blog, we take a closer look at these sexual harassment laws.  These include:

  • Disclosure of sexual harassment in the workplace (SB 5996)
  • Sexual harassment claims in employment agreements (SB 6313)
  • Sexual harassment policies (SB 6471)

These Washington State sexual harassment prevention measures explicitly protect employees’ rights to discuss workplace sexual harassment and pursue sexual harassment claims without fear of reprisal and preserve their rights when signing employment agreements.  The state’s initiatives also mean that employers will soon have more sexual harassment information and model policies created by the state to work with in making their own policies and procedures more effective.

Disclosure of sexual harassment in the workplace (SB 5996)

The purpose of this law is “encouraging the disclosure and discussion of sexual harassment and assault in the workplace.”  The law prohibits an employer from requiring an employee, as a condition of employment, to sign a nondisclosure agreement, waiver, or other document that prevents the employee from disclosing sexual harassment or sexual assault occurring:

  • in the workplace,
  • at work-related events coordinated by or through an employer, or between employees, or
  • between an employer and an employee off the employment premises.

Further, the law makes it an unfair labor practice for an employer discharge or retaliate against an employee for disclosing or discussing workplace sexual harassment or sexual assault occurring in the workplace, at work-related events and between an employer and employee off premises.  The law does not prohibit confidential settlement agreements between an employer and an employee alleging sexual harassment.  The law is effective June 7, 2018.

Sexual harassment claims in employment agreements (SB 6313)

As originally drafted, the purpose of the bill was intended to preserve an employee’s right to file a cause of action or complaint for sexual harassment or sexual assault in employment contracts or agreements.  The final version of the bill goes much further, preserving an employee’s right to file a cause of action or complaint for discrimination in employment contracts or agreements based on any protected ground.

Specifically, the law states that a provision in an employment contract or agreement is void and unenforceable if it requires an employee to waive the right to:

  • publicly pursue a cause of action for discrimination under Washington State’s antidiscrimination law, or
  • pursue a cause of action under federal antidiscrimination laws, or
  • publicly file a complaint with the appropriate state or federal agencies, or
  • if it requires an employee to resolve discrimination claims in a confidential dispute resolution process.

The law is effective June 7, 2018.

Sexual harassment policies (SB 6471)

To encourage employers to adopt and implement effective sexual harassment policies, this law charges the Human Rights Commission to work with members of the business community and labor advocates to develop model policies and best practices to keep workplaces safe from sexual harassment and to make these tools available to employers.  Both the Commission and the Department of Labor and Industries are required to post the model policies and best practices to their respective websites early next year.

In developing the best practices, the work group may consider:

  • How workplace leaders can signal commitment to stopping sexual harassment
  • How to create and protect anonymous reporting channels
  • How to ensure human resource departments are accountable for enforcing sexual harassment policies
  • How to protect complainants and observers from retaliation
  • Providing employees with the opportunity to establish discussion groups
  • Using exit surveys to identify the reason employees leave the workplace
  • Using employee engagement surveys that contain questions regarding sexual harassment prevention
  • Using new hire orientations to emphasize inclusion and sexual harassment prevention
  • Evaluating executives, managers, and supervisors on their efforts to support an inclusive workplace and prevent sexual harassment
  • Requiring classroom training for all employees

Although the law does not place any affirmative obligations on employers, employers may choose to adopt the model policies and incorporate suggested best practices to ensure their own policies are effective and their employees are treated fairly.  We’ll post a link to the state’s materials in January, 2019.

An employee who believes they have been discriminated or retaliated against in violation of the state’s antidiscrimination law may contact the Washington Human Rights Commission by calling 1-800-233-3247 or file a complaint online at www.hum.wa.gov.

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