New Washington Laws on Sexual Harassment in the Workplace, and Protection of Victims of Sexual Assault, Domestic Violence, and Stalking

New Restrictions about Sexual Harassment and Confidentiality

Three new laws prevent employers from restricting employees from discussing or disclosing sexual harassment or sexual assault in the workplace or pursuing claims of discrimination or harassment. Each law covers a different aspect:

First, employment contracts or agreements may not require an employee to waive the employee’s right to publicly pursue claims under the Washington Law Against Discrimination or federal antidiscrimination laws or publicly file a complaint with a state or federal enforcement agency. Employment contracts or agreements also may not require that employees resolve discrimination claims in a confidential dispute resolution process. The focus of this new law is the public versus confidential nature of a dispute resolution forum. Essentially, an employer may not, in an employment agreement, require an employee to prospectively waive discrimination claims, nor may an employer require an employee to agree to litigate such claims only in a confidential setting such as a private arbitration. The full text of this new law is here. 

Second, an employer may not restrict an employee from discussing sexual harassment or sexual assault in the workplace. Specifically, an employer may not require an employee to sign a nondisclosure agreement, waiver, or other document that prevents the employee from disclosing work-related sexual harassment or sexual assault. And an employer may not discharge (fire) or retaliate against an employee who discloses or discusses work-related sexual harassment or sexual assault. The new law provides an important exception: it does not prohibit confidentiality provisions in settlement agreements between employers and employees regarding allegations of sexual assault. The full text of this new law is here.

The third new law affects sexual harassment and sexual assault claims once they are in litigation. The new law declares that nondisclosure policies or agreements that restrict any person’s ability to testify or provide evidence of past instances of sexual harassment or sexual assault by a person who is a party to civil litigation do not affect discovery or the availability of witness testimony in the litigation. This means a person is permitted, in civil litigation, to provide evidence or testimony about past sexual harassment or sexual assault, even if they had previously signed an agreement agreeing to keep such information confidential. The full text of this new law is here. 

What do these three laws mean? Employers may not require employees to give up their rights to report discrimination or harassment or their rights to pursue claims of discrimination or harassment as a condition of employment. Employers may not keep employees from discussing workplace sexual harassment or sexual assault, except as part of a settlement agreement over that employee’s claims. And even those agreements cannot be used to prevent an employee or former employee from testifying in a civil suit regarding other claims, provided it is done consistent with other rules of discovery.

These new restrictions, combined with the recent heightened public focus on and awareness of sexual harassment in later 2017 and early 2018, make it more important than ever that employers take appropriate steps to prevent and address sexual harassment. This includes training managers and supervisors how to prevent, identify, and address possible harassment, investigating all reports of possible sexual harassment, and appropriately addressing sexual harassment if it is found.

New Obligations: Safety Accommodations for Victims of Sexual Assault, Domestic Violence, and Stalking

State law requires employers to give time off to employees who have been victims of sexual assault, domestic violence, and stalking, and time off to employees to assist family members who have been victims of sexual assault, domestic violence, and stalking. (To repeat using that phrase, we’ll refer to them as a group as “victims.”) Under a new law, victims are also protected in hiring and employment, and employers must now provide reasonable safety accommodations for them. Here are the specifics:

• An employer may not refuse to hire an otherwise qualified individual who is a victim or whom the employer perceives is a victim. 
• An employer may not discharge (fire), demote, suspend, or otherwise discriminate or retaliate against a person with regard to promotion, compensation, or other terms and conditions of employment because the person is a victim or perceived to be a victim.
• An employer must make reasonable safety accommodations that a victim requests, unless it would impose an undue hardship (meaning significant difficulty or expense) on the employer. Example accommodations include transfer, reassignment, modifying a work schedule, changing a work phone number or email address, changing a workstation, installing locks, or implementing safety procedures; this is not an exhaustive list. An employer may request the same types of information to evaluate safety-accommodation requests that the employer may request when an employee requests leave related to sexual assault, violence, or stalking.

Employers should review their policies and consider revising them to account for these new restrictions and obligations. Employers should also consider training managers, supervisors, and human-resources professionals so they are equipped to respond to requests for leave and safety accommodations. 

These new laws go into effect June 7, 2018. If you have questions about how any of these changes affect your business, please contact Brian Keeley