There are major changes to California sexual-harassment and related laws coming January 1, 2019, folks. Here’s a big one.
Governor Brown just signed SB 820, adding section 1001 to the Code of Civil Procedure.
New section 1001 prohibits “disclosure of factual information related to a claim filed in a civil action or a complaint filed in an administrative action” regarding:
(1) An act of sexual assault that is not governed by subdivision (a) of Section 1002.
(2) An act of sexual harassment, as defined in Section 51.9 of the Civil Code.
(3) An act of workplace harassment or discrimination based on sex, or failure to prevent an act of workplace harassment or discrimination based on sex or an act of retaliation against a person for reporting harassment or discrimination based on sex, as described in subdivisions (h), (i), (j), and (k) of Section 12940 of the Government Code.
(4) An act of harassment or discrimination based on sex, or an act of retaliation against a person for reporting harassment or discrimination based on sex, by the owner of a housing accommodation, as described in Section 12955 of the Government Code.
Under new CCP section 1001(b), a court may not enter any order restricting disclosure of this information, even by stipulation.
Exceptions include confidentiality provisions to shield the identity of the claimant (unless a government agency or public official is party to the settlement agreement) or to prohibit disclosure of the amount paid to settle the claim.
New section 1001(d) provides that any provision entered into after January 1, 2019, that prevents disclosure of the factual information set forth under section 1001(a) “is void as a matter of law and against public policy.”
On its face, the new law prohibits “disclosure of factual information related to a claim filed in a civil action or a complaint filed in an administrative action” (italics added). This would seem to mean that the statute applies only where either a lawsuit or “administrative action” has been filed. Truly pre-litigation claims that are not accompanied by a complaint filed with the Department of Fair Employment and Housing (DFEH) may not be subject to the new law.
An interesting dynamic to ponder: some attorneys (both plaintiff- and defense-side), whether rightly or wrongly, view pre-litigation demand letters as signs of weakness, attempts at easy money grabs, or acknowledgments that a claim might be settled for far less than if it were litigated. With this major new statutory change, will those attorneys’ perspective on pre-litigation claims also need to change? Pre-filing claims might now be presented as the only possible opportunity for an employer or alleged harasser to settle a claim with confidentiality—otherwise, the matter will be filed and there cannot be confidentiality under the new statute. It is easy to see the argument that such pre-litigation settlements could merit increased value given the restrictions under the new law, at least in some cases.
The text of the bill and language of new CCP section 1001 are linked here.