‘Silenced No More’: New Laws Prohibit the Silencing of Sexual Harassment

California has introduced a new law designed to bring all types of workplace harassment ‘out of the shadows’.

Laws were introduced in California in 2019 which prevented employers from making employees sign non-disclosure agreements (NDAs), also known as confidentiality agreements, in circumstances involving sexual harassment.

Now, new laws, called the “Silenced No More Act” go much further, strengthening the existing law, and broadening the application to include all forms of workplace harassment and discrimination, including sexual harassment, bullying and harassment, or discrimination based on race, religion, color, national origin, disability, and gender.

No more ‘hush’ agreements

Employers can only apply NDAs at the request of an employee. Settlement agreements can  include provisions that prevent the disclosure of the amount of money paid to resolve a matter, as well as confidentiality clauses related to threatened or unasserted claims that have not been  officially filed with a court or administrative agency.

The Act further provides that employers may not require employees, in exchange for a raise or bonus, or as a condition of employment or continued employment, to sign any non-disparagement clause or other language that denies “the employee the right to disclose information about unlawful acts in the workplace.”

Under the Act, employers must also inform an employee of their right to consult with a lawyer regarding any separation agreement, prior to signing and provide at least five business days for employees to do so.

These are important new laws for all victims of workplace harassment and discrimination, because for years, employers have been able to keep harassment, sexual harassment in particular, ‘secret’ through the use of NDAs, leaving victims unable to tell their side of the story.

The laws are also an important step forward for transparency because if a company can be identified as one which does not take the appropriate steps to stop workplace misbehaviour or doesn’t deal with it appropriately when it occurs, can now be publicly identified. This leads to greater accountability.

What about in Australia?

In Australia, there are four Acts which impose rules against discrimination in the workplace.

These are:

• Age Discrimination Act 2004.
• Disability Discrimination Act 1992.
• Racial Discrimination Act 1975.
• Sex Discrimination Act 1984.

However, if the events of this year have shown us anything it is that while the legal framework for prevention is in place, many employers still struggle to implement workplace policies based on law, with complete effectiveness.

People are still at risk.

The allegations by Brittany Higgins that she was sexual assaulted in one of the most monitored and secure buildings in Australia has bought the issue firmly into the spotlight, and while understanding the issue and what caused it is a crucial part of the investigative  process, which Parliament House is currently undertaking, there needs to be significant effort towards real change.

Key issues for Australia: reporting and resolution

Two of the key issues for Australian businesses are, firstly limited reporting of problems, and secondly, resolving problems.

To be fair, most Australian businesses are small businesses and don’t have the luxury of resources such as in-house HR teams and legal experts. That’s not to say that large organisations are faring any better in this area. The NSW Police force is an organisation with a reputation for a toxic culture of bullying and harassment which it is struggling to change.

Technology can help here, by offering online platforms that allow for employees to report misconduct anonymously. These will become increasingly important as workplaces offer flexible and hybrid working conditions for employees post-pandemic.

Unfortunately, for many years in Australia, employees have had little faith that complaints would be dealt with appropriately, if at all, or have feared the consequences of ‘speaking up’ choosing the ‘easier’ option instead — to leave.

This means that the figures we have access to, could be significantly under-reported. This is particularly concerning given that many surveys, including four periodic surveys conducted by the Australian Human Rights Commission (HRC) since 2003 showed a distinct trend —  that sexual harassment in Australian workplaces is widespread and pervasive.

The most recent HRC survey, the 2018 National Survey revealed, almost two in five women (39%) and just over one in four men (26%) have experienced sexual harassment in the workplace in the past five years.

Aboriginal and Torres Strait Islander people were more likely to have experienced workplace sexual harassment (53%) than people who are non-Indigenous.

New laws

The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 was recently passed in the Federal Parliament as a result of reforms recommended by Sex Discrimination Commissioner Kate Jenkins in her final report from the Respect@Work: Sexual Harassment National Inquiry.

The amended bill makes important changes to the legislation, including the broadening of the scope of the laws to include people previously not covered, such as volunteers and contractors who are self-employed.

It also includes important provisions around ‘third-party liability’ which apply to acts of another person who caused, instructed, induced, aided, or permitted sexual or sex based harassment and clarifies that civil actions for victimisation in relation to sexual harassment could also be brought in the Federal Court and Federal Circuit Court.

These laws are an important step forward for Australia, but the onus remains firmly on employers to cultivate workplaces that are safe, respectful and inclusive.