Alexis McKenna, Winer McKenna & Burrett

Long before the hashtag #MeToo became part of the national vernacular, corporations commonly wielded an effective weapon to keep workplace sexual harassment under wraps— the non-disclosure agreement. These NDA's are designed to protect high profile executives from embarrassing publicity surrounding an accusation of sexual misconduct, while providing victims compensation for their suffering. But there's a catch. After signing the deal, the accusers are prohibited from telling their story publicly or risk harsh penalties.

Over the past year, an avalanche of #MeToo complaints surfaced which involved powerful men accused of sexual harassment, who kept their jobs and continued harassing female employees. Secret settlements in sex offense cases are a major reason why predators—whether it's Bill O'Reilly, Harvey Weinstein or even Bill Cosby—were able to hide sexual harassment or assault for so many years.

This practice of keeping circumstances secret to protect the harassers instead of the victims has run its course. Victims' advocates and lawmakers are now working together to change the law which will allow victims to talk about what happened to them while still permitting settlement amounts to remain confidential.

A new bill SB 820, known as STAND (Stand Together Against Non-Disclosures) Act has passed the legislature and advanced to Gov. Jerry Brown's desk for consideration. It would ensure that sexual assault, sexual harassment, and sex discrimination claims are effectively pursued without the constraints of secret settlement that prevent victims from talking about the facts of their case.

I've spent nearly two decades representing harassment victims and have seen a growing trend where employers insist upon their employee agreeing to a non-disclosure and non-disparagement clause to settle claims of sexual harassment, sexual abuse and sex discrimination. These cases often involve a person in a position of power- a supervisor, a manager, an executive, a corporate officer- using his or her position to subject a lower level employee to sexual degradation, humiliation and advances.

One would think that stopping this type of behavior would be a public policy concern which would necessitate public light to ensure that this behavior does not reoccur. Yet increasingly, defendants insist on secrecy so if a victim wants personal closure for their ordeal, they are forbidden to engage in any effort to ensure the same behavior doesn't happen to another unsuspecting employee.

While the business community vehemently opposes this bill for exposing employers to the public presumption of guilt, changing the law is critical for victims who want accountability for unlawful discrimination in the workplace.

Some will argue that secret settlements are necessary to effectuate a settlement, i.e., the defendant will never settle the case unless the information is kept quiet. However, this is a growing trend: not all employers have insisted on this and it used to be uncommon, and settlements were effectuated. In addition, the legislature has prohibited secret settlements in other contexts (such as childhood sexual abuse) and yet cases still settle in those contexts.

As we have seen in repeated examples, the use of secret settlements is rampant and allows repeat perpetrators to continue harassment without any accountability. The public policy concerns regarding this behavior and the element of deterrence in these civil rights cases make clear the need to eliminate these employer mandated secrecy clauses.

If STAND is signed into law, it would take effect on Jan. 1, 2019 and would apply to private and public employers in the state, including the state legislature. It's time for perpetrators and the employers that protect them to stop hiding behind a veil of secrecy. By releasing victims from these gag orders, corporations, public entitles and universities will no longer be able to use their power to buy someone's silence.

Alexis McKenna is an Oakland-based plaintiff lawyer with the firm Winer McKenna Burritt & Tillis. Her practice is dedicated to social justice and protecting the rights of individuals. She has represented numerous workers and consumers against corporations and insurance companies in the fields of employment law (harassment and discrimination), therapy and medical malpractice, personal injury.