California Limits Confidentiality on Settlement of Workplace Discrimination Claims

Beginning 2019, any agreement to settle a California sexual harassment, sexual assault or sex discrimination court or administrative complaint could not include a confidentiality provision prohibiting disclosure of information regarding the claim. See, Silence is Not for Sale; Hush Money for Sexual Harassment, Assault and Retaliation Now Prohibited in California (October 18, 2018)

Effective January 1, 2022, Code of Civil Procedure (CCP) 1001 expands to prohibit confidentiality of “factual information” for workplace harassment or discrimination based on any characteristic protected under the Fair Employment and Housing Act (FEHA), not just those based on sex.

Section 1001 permits settlement agreements to shield, at the claimant’s request, his or her identity and “all facts that could lead to the discovery” of that identity, so long as a government agency or a public official is not a party to the agreement.

In apparent recognition of the chilling effect otherwise created, section 1001 specifically does not prohibit confidentiality of an amount paid in settlement.

CCP 1670.11 makes void and unenforceable settlement provisions that prevent a party from testifying on alleged criminal conduct or sexual harassment when required or requested to attend by a “court order, subpoena, or written request from an administrative agency or the legislature.”

Take-Aways:  Employers settling FEHA litigation must include provisions preserving employee rights under these two Code of Civil Procedure sections.

See also:

• Keep it Current – Required Sexual Harassment Prevention Training by Video Conference (October 6, 2021)
• Cautionary Tale Episode 45 Old Boy Kill-Joy – EEOC Sues Employer for Sexual Harassment and Retaliation (September 30, 2021)
• Cautionary Tale Episode 33 – EEOC Settles Tex-Mex Restaurant Servers’ Sexual Harassment Case for $40,000 (August 15, 2019)

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth orHelena Kobrin.

Tim Bowles
October 22, 2021