Assembly committee passes 3 anti-sex harassment bills

Three bills aimed at holding perpetrators of sexual misconduct accountable particularly in the government, technology and entertainment sectors — passed the Assembly Judiciary Committee on Tuesday.

“These #MeToo-type bills are part of the bigger effort to tackle the issue of sexual misconduct in different ways,” said Jacqueline Serna, legislative counsel for Consumer Attorneys of California who helped author one of the bills. “It’s not just one bill that’s going to fix it, because there are a number of nuanced issues that have been identified.”

Proponents say the bills, if passed by the Legislature, will provide refined legal tools to combat sexual harassment in the workplace. SB 224, for example, includes directors, investors and lobbyists as parties whose relationships with potential plaintiffs may be considered professional.

“There are relationships that are affected by sexual harassment which are not traditional employment relationships,” explained Wendy E. Musell, founding partner of Stewart & Musell LLP and chair of the California Employment Lawyers Association, which co-sponsored SB 224.

Referring to criminal charges against former Hollywood producer Harvey Weinstein, she said, “With Weinstein, you’re not an employee of the movie until you get the part. The reason these categories were added were to address situations where its incredibly difficult to be whistleblowers.”

“It’s important we put these people on notice that this kind of behavior is not going to be tolerated,” said Sen. Hannah-Beth Jackson, D-Santa Barbara, the bill’s author. “Abuse is not going to be allowed to pervade the lives of many women and some men in a way that prohibits opportunities for advancement.”

The committee also passed SB 820, also known as the STAND (Stand Together Against Non-Disclosures) Act, which bans non-disclosure agreements in cases of sexual assault, sexual harassment and sex discrimination litigation.

“As we have seen time and again, secret settlements have been used by wealthy and well-connected perpetrators to silence victims and continue hurting others,” state Sen. Connie M. Leyva, D-San Bernardino, said in news release Tuesday. “By banning the use of this legal tool unless the victim decides otherwise, SB 820 will help to protect women and others from being victimized by lifting the curtain of secrecy that has protected perpetrators for far too long.”

The use of “secret settlements” has become widespread and even commonplace, according to practitioner feedback given to Consumer Attorneys of California.

“Before [defense attorneys] insisted on the numbers being confidential, but more recently we saw they’ve been insisting on all the underlying facts being confidential,” Serna said. “This has led to serial predators being protected at their jobs because they’re able to throw everything under the rug.”

The California Chamber of Commerce has opposed SB 820, testifying that a lack of confidentiality will result in more cases going to trial.

“I don’t think it’s going to eliminate all settlements, but there will be a situation in which companies evaluate whether they choose to defend their reputation rather than just settling,” said Jennifer D. Barrera, senior vice president of policy for the chamber. “It will encourage more litigation and more cases going to trial that would normally be resolved based on a pure financial decision.”

Serna said the length and cost of a trial would continue to make settling legitimate claims the obvious choice.

The third bill approved Tuesday was SB 419, a more inward-looking examination of sexual harassment. In the last year and a half, a number of government employees have been accused of sexual misconduct, including state Sen. Tony Mendoza, D-Artesia, who resigned abruptly in February and Assemblywoman Cristina Garcia, D-Bell Gardens, former chair of the Legislative Women’s Caucus.

With lawsuits against lawmakers anticipated, SB 419 attempts to prohibit retaliatory action against legislative employees and requires each house of the egislature to maintain records of harassment complaints for at least 12 years after the complaint is made.

As an attorney for two lawsuits of this nature, Micha S. Liberty, founding partner of Liberty Law Office, is intrigued but unconvinced of SB 419’s potential impact.

“Every bit of further protection for victims that will allow them to come forward and speak out and hopefully put an end to this kind of behavior is warranted, necessary and exactly what people holding public office should be doing,” Liberty said. But, in terms of how these provisions play out in court, “it really depends on how employers in general and the Legislature specifically interprets their own words.”