December 03, 2019
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Maine is poised to end secret settlements in workplace discrimination cases

Troy R. Bennett | BDN
Troy R. Bennett | BDN
Gov. Janet Mills

Around 2 a.m., in the waning hours of the final day of the legislative session, a group of lawmakers sat with the governor in her office in Augusta and looked over a bill, LD 1529, one more time. It had already passed the Maine House and Maine Senate, but Gov. Janet Mills had some concerns.

The legislation arguably went the furthest of the handful of bills targeting sexual harassment in the workplace that have passed the Maine Legislature in recent years. It would fundamentally alter the route many employers take to protect themselves against claims of discrimination by prohibiting them from requiring employees to sign confidentially agreements when negotiating monetary settlements or as a condition of employment.

In a rare move, the people in the room agreed to pause the bill’s enactment. But it’s coming back this session and appears poised to pass. If it does, it could reshape business practices and prompt more employees — mainly women — to talk publicly about experiencing sexual misconduct in the workplace.

Nondisclosure agreements gained more scrutiny in the wake of the #MeToo movement, and after The New York Times and The New Yorker published their investigations in October 2017 into sexual harassment and rape allegations against former Hollywood producer Harvey Weinstein. The stories uncovered how Weinstein paid multiple women who claimed abuse in exchange for their silence. While the legally binding contracts are not new, the journalism showed how they made it possible for his alleged behavior to continue.

By signing the agreements, aggrieved parties agree not to file a lawsuit against their employer, discuss the details of what happened or publicize the monetary award. If they violate the terms of the deal, the employer can recover damages.

LD 1529 would make nondisclosure agreements in the workplace possible only if employees want them, such as to protect their privacy. The legislation does not aim to ban them but to forbid employers from imposing them. The bill would give alleged victims 21 days to think over the agreements and, after signing, at least seven days to revoke them.

No one officially testified in opposition to the bill, though the Maine State Chamber of Commerce raised concerns in its testimony in April before the Legislature’s labor panel, saying it would effectively end settlements.

“Why would an employer make any payment if the employee can still publicly talk about it?” Peter Gore, a lobbyist for the chamber, said in his written testimony.

As currently written, the bill would apply to all workplace discrimination cases, of which a portion involve sexual harassment. Of the 3,380 distinct allegations filed with the Maine Human Rights Commission in fiscal year 2018, 471 alleged sex discrimination — the majority of those for sexual harassment. Claims of sex discrimination to the commission have more than doubled in recent years.

“If we don’t shine the light of day on that behavior, we can’t be sure it will not happen again,” said Rep. Thom Harnett, D-Gardiner, who sponsored the bill.

In addition to preventing mandatory confidentiality agreements as part of settlements, the bill would also stop employers from requiring them as a condition of employment. Pre-employment agreements usually aim to protect proprietary information but can also forbid employees from talking about discrimination that they might experience in the future.

“Our sexual assault support centers have worked with victims of sexual harassment who have been asked to sign nondisclosure agreements as terms of employment,” said Elizabeth Ward Saxl, executive director of the Maine Coalition Against Sexual Assault. “That should not be happening in Maine.”

But as the early morning minutes ticked by on June 20, the people in the room with the governor — who have extensive experience with human rights cases — decided to hold off on the bill.

The governor supported the substance of the bill, but she had two, largely technical concerns, according to interviews: The language of the legislation was too complex, and the provisions didn’t appear to be consistent with federal and state law.

Mills “approaches this issue as someone who has represented employees in human rights cases before,” Lindsay Crete, her press secretary, wrote in an email. She said Mills thought the bill “could be improved upon by simplifying the language and by working to ensure that it was consistent with existing state and federal law.”

Specifically, the U.S. Equal Employment Opportunity Commission and the Maine Human Rights Commission have the authority to investigate workplace discrimination even if victims have promised their employers that they won’t participate in proceedings by testifying or providing evidence. By allowing an employee to request confidentiality, the bill could conflict with the agencies’ mission and obligations, said Rep. Anne Carney, D-Cape Elizabeth, who has practiced employment and civil rights law for years. As a member of the Legislature’s labor committee, she was in the early-morning meeting with the governor.

“I was very comfortable supporting the original bill. At the same time I think that there’s an opportunity here to address the governor’s concerns and reach common ground,” said Sen. Shenna Bellows, D-Manchester, who chairs the labor committee and was also in the room.

Troy R. Bennett | BDN
Troy R. Bennett | BDN
Democratic U.S. Senate candidate Shenna Bellows speaks with supporters in 2014.

Rather than have Mills veto the bill, Harnett — who previously directed the civil rights education and enforcement unit at the Maine attorney general’s office — sponsored a joint order to recall it from her desk.

It was one of only five bills that were recalled last session, out of more than 1,000 pieces of legislation. The bill will be amended, and the Legislature will consider it again this coming legislative session, Harnett said.

The others in the room agreed on the need to revise the language. “At 2 o’clock in the morning, when we were all sitting there talking about the bill, I agreed we could work on it and make it better, and I’m glad we had the opportunity to do it,” Carney said.

Some on the outside, however, were curious what had happened — since bills are not often recalled from a governor’s desk and given Mills’ background. In addition to twice being Maine’s attorney general, Mills co-founded the Maine Women’s Lobby, which works to prevent discrimination.

“It was surprising to me only in the sense that we hadn’t gotten any indication [that the governor had concerns about the bill],” said Jeffrey Young, a partner in the law firm of Johnson, Webbert & Young and an executive board member of the National Employment Lawyers Association. But “in general I think it’s clear that the governor supports [the bill] and wants to see harassment end.”

The arguments of Young and Gore, with the chamber of commerce, preview those that are likely to continue in the upcoming legislative session, which starts in January.

Robert F. Bukaty | AP
Robert F. Bukaty | AP
In this Oct. 23, 2017, file photo, the State House is surrounded by fall foliage in Augusta, Maine.

Ending mandatory confidentiality agreements could prompt employers to more fully examine the systems they have in place to prevent and respond quickly to harassment, to avoid having to deal with potential settlements in the first place, Young said.

“Since most harassers are not one-time offenders, I think it would go a long way toward eliminating the cloak of privacy that allows predators to continue their illicit activity,” Young said.

Gore, however, questioned whether eliminating the guarantee of confidentiality would backfire, dragging out the settlement process, or burdening employees, employers and the court system with expensive cases.

“This person is still free to give evidence and make statements, so there’s no protection for us. The end result is settlements will become much more difficult,” he said.

With the bill coming up again soon, the governor’s statements hint that it’s likely to pass, especially given Democratic majorities in the House and Senate. According to Crete, Mills “looks forward to working with the sponsors to refine the bill more during the upcoming legislative session.”

Maine Focus is a journalism and community engagement initiative at the Bangor Daily News. Questions? Write to mainefocus@bangordailynews.com.



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