#MeToo, But Maybe Not For You

Loren Kaye
President of the California Foundation for Commerce and Education

Preventing sexual harassment and protecting victims has been a high priority for the Legislature – fallout from the #MeToo movement sweeping politics, the media and Hollywood, and especially on the heels of harassment scandals in the State Capitol.

So it’s noteworthy that one of the signature bills to combat sexual harassment explicitly exempts the Legislature and other government employers from one of its key provisions.

The Legislature has passed and sent to the Governor legislation that would prohibit confidential settlements of sexual harassment claims. The main thrust of SB 820 (Leyva) is controversial: proponents assert that these deals discourage employers from acting to prevent harassment and enable future bad behavior by the perpetrators. Opponents, including CalChamber, argue that mandatory publication discourages settlements in the first place, forcing employers to litigate to clear their names, especially if the decision to settle was not based on the merits of the case.

But beneath the larger debate is a troubling development. In a nod to victims, the legislation allows a settlement, upon request by the claimant, to shield her or his identity from disclosure.

But not for public sector employees, where the legislation provides no bar against sharing of victims’ identities. Indeed, the bill specifically notes that this protection “does not apply if a government agency or public official is a party to the settlement agreement.”

The bill’s Assembly sponsor argued that this un-protected class was necessary to mollify advocates of the open records law, to ensure that government wasn’t hiding key information from media watchdogs. But the only fact being shielded is the name of the victim – not the perp, not the agency, not the location nor even the behavior. In any case, this conflict would be easily resolved by amending the Public Records Act to recognize this exemption; after all, the Act already has more than two dozen exemptions.

By creating a class of employees unshielded from public disclosure, the Legislature may discourage future victims, including its own employees, from reporting and confronting their harassers.

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