Responding to the national “#MeToo” movement, Washington has enacted laws to protect victims of sexual harassment and assault in the workplace by barring nondisclosure agreements as a condition of employment and contracts limiting the ability to report sexual harassment.

In addition, Governor Jay Inslee has signed a law providing new protections for survivors of domestic violence, sexual assault, or stalking against employment discrimination. For details, see our article, Washington Expands Employment Discrimination Protections for Victims of Domestic Violence.

Disclosure, Discussion (S.B. 5996)

“An Act relating to encouraging the disclosure and discussion of sexual harassment and sexual assault in the workplace” (S.B. 5996) will take effect on June 7, 2018.

To protect victims of sexual assault and harassment in the workplace, S.B. 5996 prohibits employers from requiring employees to “sign a nondisclosure agreement, waiver, or other document that prevents the employee from disclosing sexual harassment or sexual assault occurring in the workplace” as a condition of employment.

Under the new law, an addition to RCW Chapter 49.44, employers may not prevent employees from publicly disclosing or discussing sexual harassment or sexual assault occurring:

• At work;
• At work-related events coordinated by or through the employer, or between employees; or
• Between an employer and an employee, off the employment worksite.

Any restrictions to employment agreements, nondisclosure agreements, waivers, or other documents signed by an employee as a condition of employment that prevent the above is a violation of public policy and is void and unenforceable. This does not prohibit a settlement agreement between an employee or former employee alleging sexual harassment and an employer from containing confidentiality provisions.

Complaint, Cause of Action (S.B. 6313)

“An Act relating to preserving an employee’s right to file a complaint or cause of action for sexual harassment or sexual assault in mandatory employment contracts and agreements” (S.B. 6313) will take effect on June 7, 2018.

The new law, another addition to RCW Chapter 49.44, provides that an employment contract or agreement is against public policy and is void and unenforceable if it requires an employee to waive employee rights to:

• Publicly pursue a cause of action under the Washington State Law Against Discrimination (WLAD);
• Pursue a cause of action under federal discrimination laws; or
• Publicly file a complaint with the appropriate state or federal agencies.

An employment contract or agreement requiring an employee to resolve claims of discrimination in a confidential dispute resolution process is also against public policy and is void and unenforceable under the new law.

Model Policies (S.B. 6471)

The fourth measure, “An Act relating to developing model policies to create workplaces that are safe from sexual harassment” (S.B. 6471), was passed to develop model policies for the workplace. It will take effect on June 7, 2018.

The legislature recognized that between 25 percent and 85 percent of women have experienced sexual harassment in the workplace. The new law was created with the intent to encourage employers to adopt and implement policies to ensure safer environments for women workers to report concerns about sexual harassment, without fear of retaliation or loss of status or promotional opportunities.

The Human Rights Commission is directed to create a “work group” to develop model policies and best practices for employers and employees to keep the workplace safe from sexual harassment. The Commission must post the model policies and best practices prominently on its website for the public to access by January 1, 2019. The new law further requires the Department of Labor and Industries to post the model policies and best practices on its website for public access within 30 days of the Commission’s adoption.

The following groups must be represented in the work group:

• Representatives from the business community;
• Human Resource Professionals;
• Groups advocating for survivors of sexual harassment;
• Labor organizations;
• Representatives of farmworkers or groups advocating for farm workers;
• Representatives from agricultural industries; and
• Subject matter experts as deemed necessary by the commission.

The legislation includes many considerations the work group may review when developing best practices in the workplace, such as:

• How workplace leaders can signal commitment to stopping sexual harassment;
• How to create and protect anonymous reporting channels to allow employees to raise concerns about workplace misconduct and to share ideas with leadership without worrying about being identified;
• How to ensure human resource departments are accountable for enforcing sexual harassment policies, aiding victims of sexual harassment, and encouraging victims to speak up;
• How to protect against retaliation for complainants and observers;
• The use of employee engagement surveys that contain questions regarding sexual harassment prevention; or
• Requiring training for all employees in a classroom environment.