Legislature’s harassment hearing focuses on closing loopholes

SACRAMENTO — The state Legislature held its latest hearing on sexual harassment on Tuesday, with a focus on closing legal loopholes that harassers have used to protect themselves.

Several attorneys spoke about how strategies such as mandatory arbitration, non-disparagement clauses, secret settlements and the threat of calling immigration authorities has been used to silence victims.

The joint hearing was held by the Senate Judiciary Committee and the Select Committee on Women, Work & Families. In January, the two committees examined potential changes to the legal standard of proof in harassment cases.

The solutions presented advance ideas that labor groups and plaintiffs’ attorneys have been pushing since long before #MeToo became a household word.

For instance, panelist Cliff Palefsky has long been a leading voice calling for the end of mandatory arbitration agreements. The partner with McGuinn, Hillsman & Palefsky APC in San Francisco has helped draft state and national legislation, and he has testified in Congress about what he says are the dangers of forced arbitration.

He testified that lawsuits such as those by former Fox News anchor Gretchen Carlson and Ellen Pao in Silicon Valley had the effect of pulling back a veil on how arbitration skews the outcome of harassment and gender cases.

Even though Pao lost her case against venture capital firm Kleiner Perkins Caufield & Byers, Palefsky said the case “changed Silicon Valley” by making employers more aware of what women face in the workforce.

“Gretchen Carlson had an arbitration clause that said everything about the allegations is private, but they decided to file in court and it changed the world,” Palefsky said. “One good public verdict will do more to deter sexual harassment than 100 private arbitrations.”

Palefsky said that over time, many arbitration agreements have taken on some of the trappings of a neutral court that might protect employers, but not ones that would aid employees. For instance, some allow motions to dismiss, but still bar class claims or any sort of collective action.

Los Angeles employment law attorney Toni Jaramilla urged legislators to limit the use of non-disparagement agreements. She said some of her clients had been forced to sign non-disparagement agreements with a $1 million liquidated damages penalty as a condition of employment, and that many agreements include no expiration date.

“These are low-wage earners that these provisions are being presented to,” Jaramilla said. “Unlike defamation claims, an employee does not have the defense of truth or opinion.”

Daren Lipinsky, the senior trial attorney at the Lipinsky Law Firm in Chino Hills, criticized the use of secret settlements. He said he was there on behalf of the Consumer Attorneys of California, which is sponsoring SB 820, a bill that would ban secret settlements in harassment cases.

“In my 20 years of practice, I have yet to settle a case, and I have done hundreds and hundreds of these, where the private employer does not insist upon a secret settlement provision,” Lipinsky said.

While the hearing provided a forum for plaintiffs’ attorneys, it also highlighted another black eye suffered by legislative Democrats as they seek to address harassment.

The hearing was co-sponsored by the California Legislative Women’s Caucus, but that group’s chairwoman was not present. Assemblywoman Cristina Garcia, D-Bell Gardens, announced last week she would go on unpaid leave after a young, male former staffer to another legislator accused her of attempting to grope him in 2014.

Senate Judiciary Committee member John Moorlach, R-Costa Mesa, without mentioning Garcia by name, said he hoped the hearing would not neglect the issue of “female on male” harassment.

Senate Judiciary Chair Hannah-Beth Jackson, D-Santa Barbara, responded that harassment still “overwhelmingly” affects women. She also said the hearing was not specifically intended to take on harassment within the Legislature.