The Equal Employment Opportunity Commission (EEOC) released figures for the number of workplace discrimination charges filed. The sexual discrimination charges reported in the United States rose by 6% and in California by 5.7%. Sexual harassment settlements can be in the millions, leaving many employers concerned that they will be next.

Here’s a look at the EEOC Workplace Discrimination Statistics:

• 30,356 sex discrimination charges were filed in the United States, up 6%
• Nationally, sexual discrimination charges, which include sexual harassment and pregnancy allegations, rank third after retaliation (37,836) and race (33,512)
• $365.4 million dollars worth of monetary recoveries made nationally
• 2,036 sexual discrimination charges were filed in California, up 5.7%
• California charges account for 6.7% of the total sexual discrimination charges in the country

Sexual Harassment Bill – AB 1867

On August 24, 2018 AB 1867 was passed by the California General Assembly and is awaiting signature by Governor Jerry Brown. If signed by Governor Brown, AB 1867 will add Government Code section 12950.5 to the Fair Employment and Housing Act (FEHA) and would require employers of 50 or more employees to maintain internal records of complaints alleging sexual harassment for five years after the date the complainant or any alleged harasser leaves the company—whichever date is later.

Existing law requires California employers to maintain anti-harassment policies that inform employees of the complaint process available to them. The new law would permit the state Department of Labor to seek an order compelling any employer to comply with the record-keeping requirement and mandate that records of the complaints alleging sexual harassment must be maintained for the employment-plus-five-year period. AB 1867 defines an “employee complaint” as one filed through the employer’s “internal complaint process.”

Unenforceable Contracts That Waive a Right to Testify – AB 3109  

Also awaiting Governor Brown’s review and signature is AB 3109, which would void any contractual provision that waives a party’s right to testify about criminal conduct or sexual harassment by the other contracting. As it relates to workplace harassment and similar situations, this bill declares that any settlement provision that would prevent a person from testifying about criminal conduct or sexual harassment in a judicial, administrative, or legislative proceeding is void and unenforceable, so long as the person was required or requested to appear at the proceeding. This provision requires that the person appears and testifies pursuant to a subpoena or court order in the case of a judicial proceeding, or in response to a written request in the case of an administrative or legislative hearing. In other words, a person who signed a settlement agreement to refrain from speaking about certain matters would not be free to breach that confidentiality by voluntarily showing up and speaking at a public hearing. While this bill will not outlaw non-disclosure agreements, it will limit their scope so that victims and witnesses could never be prevented from testifying in legal or legislative proceedings when asked to do so.