United States: Washington State Legislature Responds To The #MeToo Movement

Washington has adopted four new laws addressing workplace harassment and discrimination. Three prohibit limitations on an employee's disclosure or public pursuit of discrimination or harassment claims, while the fourth requires the Washington State Human Rights Commission to develop model sexual harassment policies and "best practices" for employers. While these laws were motivated primarily by the #MeToo movement, one of them broadly attacks agreements for the private resolution of discrimination claims generally. The laws take effect on June 7, 2018.¹

SB 6313 – Restrictions on Confidential Dispute Resolution of Any Kind of Discrimination Claim

This law purports to invalidate any agreement provision that requires an employee to resolve claims of discrimination (of any kind) in a dispute resolution process that is confidential, or that waives the employee's right to publicly pursue a cause of action for discrimination.² The legislative history indicates the law was intended to target all forms of mandatory private alternative dispute resolution. Issues that we expect will be addressed in future litigation include (a) whether arbitration agreements are shielded from the law by Federal Arbitration Act preemption and (b) whether the law was intended to apply to agreements signed before the law became effective, and if so, whether retroactive application would unlawfully impair contract rights in violation of the U.S. Constitution.

SB 6068 – Right to Discover and Present Evidence of Sexual Harassment or Assault in Civil Actions

This law prohibits the use of any agreement, including an arbitration agreement or decision, to limit the discovery or presentation of evidence regarding past sexual harassment or assault committed by a party to a civil action or administrative proceeding. The law does not change admissibility standards of evidence as to whether the probative value of the evidence outweighs potential prejudice. The law also gives the court or presiding officer the authority to enter an order to protect the identity of the person who is or is alleged to be the victim of sexual harassment or assault. The law applies to both pending and newly-filed cases.

SB 5996 – Right to Disclose Sexual Harassment or Assault – Both Inside and Outside of Litigation

This law prohibits – and declares void – any agreement required as a condition of employment that prevents the employee from disclosing sexual harassment or sexual assault. The bill further declares it an unfair practice under the Washington Law Against Discrimination (WLAD) for an employer to retaliate against an employee for disclosing or discussing sexual harassment or sexual assault. Notably, the bill applies not only to those acts which occur in the traditional "workplace," but also to acts at off-premises work-related events, whether coordinated by or through the employer, employees, or a combination of the two. The law provides an exception for settlement agreements regarding allegations of sexual harassment, allowing for confidentiality provisions pertaining to the same. The courts will need to resolve the potential conflict between this exception for settlement agreements and the provisions of SB 6068 discussed above.

SB 6471 – Model Sexual Harassment Policies and "Best Practices"

This law requires the Washington State Human Rights Commission to develop model policies and "best practices" for employers and employees to keep workplaces safe from sexual harassment. The model polices must be developed and published by January 1, 2019. The law does not make the model policies and "best practices" mandatory, but employers can expect plaintiffs to argue that a failure to follow them is evidence of a failure to reasonably guard against harassment.

Footnotes

1. These laws are in addition to Washington's Equal Pay Opportunity Act, and new requirements under Washington's Domestic Violence Leave Act, which are also effective on June 7, 2018. See Deidra A. Nguyen, Washington State Amends Domestic Violence Leave Law, Littler ASAP (Apr. 17, 2018); Breanne Martell and Dan Thieme, New Pay Equity Law in Washington State, Littler ASAP (Apr. 16, 2018).

2. The law also invalidates any agreement provision prohibiting an employee from publicly filing a discrimination complaint with appropriate state or federal agencies. Such provisions were invalid under existing law.

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