Washington Law Against Discrimination. Under the Washington Law Against Discrimination (WLAD), a person has the right to be free from discrimination related to a protected status, such as race, national origin, sex, veteran or military status, sexual orientation, and disability. An employer may not discriminate against a person because of one's protected status. Sexual harassment is a form of sex discrimination under WLAD and Title VII of the Civil Rights Act of 1964.
WLAD is administered by the Washington State Human Rights Commission (HRC). HRC investigates complaints alleging unfair practices in violation of WLAD. If HRC finds there is reasonable cause to believe discrimination has occurred, it must first try to eliminate the unfair practice via conference and conciliation. If the parties do not reach an agreement, HRC must refer the matter to an administrative judge for a determination.
Definitions. "Sexual assault" means any type of sexual contact or behavior that occurs without the explicit consent of the recipient. "Sexual contact" means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.
"Sexual harassment" means unwelcome sexual advances, requests for sexual favors, sexually-motivated physical contact, or other verbal or physical conduct or communication of a sexual nature if:
Nondisclosure Agreements. A nondisclosure agreement (NDA) is a contract between two or more parties that restricts the disclosure of confidential material or information to third parties. In general, state contract law governs NDAs, however, an NDA may contain a choice of law provision that controls which jurisdiction's law applies.
Prohibited Acts. Employers may not require an employee, as a condition of employment, to sign an NDA, waiver, or other document preventing the employee from disclosing sexual harassment or sexual assault occurring in the workplace, at work-related events, between employees, or between an employer and an employee off the employment premises. Any NDA, waiver, or other document signed by an employee as a condition of employment preventing the disclosure or discussion of sexual harassment or sexual assault is against public policy and is void and unenforceable. It is an unfair practice under WLAD for an employer to retaliate against an employee for disclosing or discussing sexual harassment or sexual assault. Settlement agreements between an employee or former employee and an employer may contain confidentiality provisions.
Employers may prohibit certain human resources staff, supervisors, or managers expected to maintain confidentiality as part of their job duties and certain individuals participating in open and ongoing investigations regarding alleged sexual harassment from disclosing such information until the investigation concludes.
Definitions. "Harassment" means without lawful authority:
"Discrimination" means employment discrimination prohibited by WLAD.
Prohibited Acts. Harassment and discrimination are included in the employer prohibitions. Specifically, employers may not require an employee, as a condition of employment, to sign an NDA, waiver, or other document preventing the employee from disclosing harassment or discrimination occurring in the workplace, at work-related events, between employees, or between an employer and an employee off the employment premises. Any NDA, waiver, or other document signed by an employee as a condition of employment preventing the disclosure or discussion of harassment or discrimination is against public policy and is void and unenforceable. It is an unfair practice under WLAD for an employer to retaliate against an employee for disclosing or discussing harassment or discrimination.
PRO: As a software engineer for nearly two decades, I have had to sign confidentiality agreements in every company I've worked. In some positions, I witnessed harassment and when I reported, I was intimidated by the company. I was reported to security for leaking confidential information in violation of the NDA I signed. The barriers to survivor healing and justice are numerous. We know that disclosure in a survivor's own time can be the catalyst for healing trauma, opening the door for opportunities and support. One of the most important things for a survivor is the ownership of their story. NDAs have the effect of silencing survivors from sharing their harm and have become common in employee-employer relationships. NDAs allow harassment to persist in the workplace. When sexual misconduct is kept secret, employers cannot find the perpetrators and prevent continuing misconduct. With NDAs, employers may have no idea they are hiring someone with a history of sexual misconduct. This is a good bill, but we would suggest also preventing employers from requesting NDAs as a part of settlement agreements. All individuals should be treated with dignity, respect, and fairness in the workplace.