California’s approach to sexual harassment law has shifted sharply toward transparency. Victims should not be muzzled by confidentiality clauses that protect serial harassers, and employers cannot buy silence about unlawful conduct as a condition of settlement or employment. That is the through line of a series of statutes enacted from 2018 onward, layered on top of the California Fair Employment and Housing Act (FEHA) and federal rules. If you negotiate settlements, draft offer letters, or advise on workplace investigations in California, you need to understand where confidentiality and non-disclosure agreements still work, where they fail, and how to avoid costly missteps.
This guide brings the law down to ground level. It touches the FEHA sexual harassment framework, explains the core statutes governing NDAs and settlement confidentiality, and shows how these rules play out in mediation rooms, HR investigations, and court filings.
The legal backbone: FEHA and the definition of sexual harassment
California defines sexual harassment broadly. Under the California Fair Employment and Housing Act, harassment is unlawful when it is based on sex, gender, gender identity, gender expression, sexual orientation, pregnancy, childbirth, or related medical conditions. Two classic categories appear in most training materials and litigation:
- Quid pro quo harassment California: an employment benefit, such as a raise or continued employment, conditioned on submission to sexual conduct or acceptance of unwelcome sexual advances. Hostile work environment California: severe or pervasive conduct that alters working conditions and creates an abusive atmosphere. This includes verbal sexual harassment California, physical sexual harassment California, and unwanted advances at work California. Repeated comments, crude jokes, sexual images, leering, or nonconsensual touching can qualify.
A harasser can be a supervisor, a coworker, or even a client or vendor. Supervisor sexual harassment California triggers stricter employer liability rules. For coworker sexual harassment California or third party sexual harassment California, employer liability depends on whether the employer knew or should have known and failed to take prompt remedial action. These liability rules, built into FEHA, are central when negotiating confidentiality, because they influence risk assessment, damages exposure, and whether a public statement could invite copycat claims.
Why confidentiality became a flashpoint
Before 2018, employers often insisted on broad non-disclosure terms in sexual harassment settlements, covering not only the settlement amount but also the underlying facts. Survivors would accept to move on, access therapy, or avoid retaliation. The public costs became obvious: serial offenders remained hidden, coworkers stayed at risk, and the same patterns repeated.
California responded with a set of statutes that rebalanced who controls the narrative. These laws limit confidentiality across settlements, employment agreements, and even pre-dispute arrangements, while preserving privacy options for survivors who want them.
The key statutes that govern NDAs in sexual harassment cases
Several statutes matter at once. Their interaction governs what can be kept confidential and what cannot.
SB 820 (the STAND Act) and CCP section 1001
The Stand Together Against Non-Disclosure Act, often called the STAND Act, prohibits settlement agreements that prevent the disclosure of factual information related to claims of sexual assault, sexual harassment, workplace harassment or discrimination based on any protected characteristic, or retaliation for reporting such conduct. California applied this rule to civil and administrative actions. The public policy is straightforward: parties cannot contract for silence about unlawful behavior.
There are important qualifications. Settlements can still include confidentiality of the amount paid, and they can protect the identity of the claimant at the claimant’s request. In practice, this means a survivor can choose privacy, but an employer cannot force silence about what actually happened.
SB 1300 and FEHA enhancements
SB 1300 expanded FEHA sexual harassment protections and clarified that a single incident can support a hostile work environment claim if it is especially severe. It also restricts employers from requiring employees to sign releases of FEHA claims or non-disparagement provisions as a condition of a raise, bonus, or continued employment, unless those provisions include specific statutory language that preserves the employee’s right to disclose unlawful conduct. This changed the routine HR playbook. Non-disparagement clauses are still possible, but they must carve out the employee’s right to discuss conduct they reasonably believe is unlawful.
AB 3109
AB 3109 makes any contract clause void and unenforceable if it waives a party’s right to testify about criminal conduct or sexual harassment when compelled by court order, subpoena, or written request from an administrative agency. In other words, even if a confidentiality clause slips through, it cannot stop testimony.
SB 331 (the Silenced No More Act)
SB 331 broadened restrictions on confidentiality to all forms of workplace harassment and discrimination, not just sex-based claims. It also requires specific disclosure language in separation agreements: any non-disparagement or confidentiality provision must expressly state that the agreement does not prohibit the worker from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that they have reason to believe is unlawful. Employers must provide employees at least five business days to consider a separation agreement containing such terms, and they must notify the employee of the right to consult an attorney.
For practitioners, SB 331 is the statute that trips up routine templates. If your standard non-disparagement clause lacks the required carve-out and notice, it is defective.
Other intersecting rules
- California Labor Code provisions prohibit retaliation for reporting sexual harassment California and safeguard whistleblowers. These statutes add penalties if an employer uses a confidentiality clause to conceal violations or to punish disclosure. Federal securities laws (for public companies) discourage overly broad confidentiality provisions that could chill whistleblowing to the SEC. California employers with national workforces often harmonize California-compliant carve-outs with federal safe harbors to avoid inconsistent drafting.
What is still confidential, what is not
The easiest way to navigate California’s NDA rules is to separate the concepts.
Factual information about harassment. Parties cannot restrict disclosure of the underlying facts of sexual harassment at work California, discrimination, or related retaliation. An employee can speak about what happened to them or what they witnessed, whether at a cocktail party, a press interview, or in a social media post, if they choose. Employers cannot require pre-approval or impose liquidated damages for such disclosure.
Settlement amount. The dollar figure can be kept confidential. Many agreements allow both sides to say “the matter has been resolved” and nothing more about the figure. Be careful with stock or non-cash consideration, which may need reporting to the SEC or tax authorities and sometimes becomes discoverable.
Claimant identity. If the claimant asks for confidentiality of their name and other identifying details, the settlement can and often should protect it. This aligns with survivor autonomy and reduces collateral consequences for the claimant’s future employment.
Personnel information and trade secrets. Confidentiality is still legitimate for non-harassment topics. Employers may protect proprietary information, customer lists, and bona fide trade secrets. The clause must be carefully cabined so it does not sweep in factual information about unlawful conduct.
Mutual non-disparagement with carve-outs. A mutual non-disparagement clause is common, but it must include the Silenced No More Act language preserving the right to discuss conduct the individual has reason to believe is unlawful.
Why this matters in practice
Confidentiality terms are not window dressing in sexual harassment settlements. They shape whether a survivor feels free to warn colleagues, whether other victims come forward, and whether the employer can close the book on systemic risk. I have seen mediations rise or fall on two paragraphs: one that tries to gag factual disclosure and one that tries to mandate pre-approved scripts. In California, both will draw a red pen. Mediators and experienced counsel now start from the statutory baseline and draft from there, which reduces friction and speeds resolution.
The complaint path and how NDAs intersect with timing
A typical sexual harassment claim California follows one of two paths. Some employees file internally, use the employer’s sexual harassment investigation California policy, and escalate only if the response fails. Others file externally first with the California Civil Rights Department (CRD, formerly DFEH) or the EEOC. The sexual harassment complaint process California often includes dual filing with the EEOC and CRD, with a right-to-sue letter if the claimant opts to go straight to court.
Timeline considerations matter. The filing deadline sexual harassment California has evolved in https://ricardofgkt969.bearsfanteamshop.com/california-sexual-harassment-case-timeline-from-report-to-resolution recent years. Under FEHA, many claims have a three-year window to file an administrative complaint with the CRD from the date of the alleged unlawful practice, and then a year to sue after receiving a right-to-sue notice. Time can be tolled or extended in certain situations. For strategy, survivors should note that early settlement discussions are common after a CRD complaint is filed. When settlement talks begin, the confidentiality constraints described here immediately become relevant. A mediator who knows the statutes will save both sides time.
NDAs at the hiring and onboarding stage
Some employers still rely on legacy offer templates that sweep too broadly. In California, onboarding documents must not require employees to waive the right to disclose unlawful workplace conduct. If a non-disparagement or confidentiality clause is used at hiring or in a policy handbook, it must include the SB 331 carve-out stating that nothing in the agreement prevents the employee from discussing or disclosing information about unlawful acts in the workplace. Pair this with clear california sexual harassment policy requirements, training notices, and reporting channels.
If your company contracts with independent contractors, remember that independent contractor sexual harassment California protections are robust under FEHA. Do not assume a contractor falls outside the law or outside the confidentiality carve-outs. Draft the same compliant carve-out language in independent contractor agreements to avoid unenforceable terms and to protect whistleblower rights.
Mediation ground rules and workable language
Preparation prevents impasse. Both sides should come to a sexual harassment mediation California with model language ready. A workable starting point:
- Factual disclosure. A clause affirming that nothing in the agreement prohibits the claimant from discussing or disclosing information about unlawful acts in the workplace, including factual information related to claims of sexual harassment, discrimination, or retaliation, consistent with SB 331 and CCP section 1001. Amount confidentiality. A narrow clause protecting only the settlement amount and specific consideration, with exceptions for tax advisors, attorneys, immediate family, and as required by law. Claimant identity. A survivor-option clause allowing the claimant to elect confidentiality of their name and identifying information, combined with a neutral statement the parties can share if asked. Non-disparagement. Mutual, limited to knowingly false statements or malicious statements about professional competence, with a statutory carve-out preserving the right to disclose unlawful acts. Non-admission. Standard non-admission of liability, tailored to avoid implying the claimant is restricted from factual discussion.
When counsel insists on pre-approval for any public statement, the agreement should clarify that pre-approval does not apply to the claimant’s factual disclosure about unlawful conduct. Pre-approval can be limited to the joint press statement, if any.
Employer training and policy implications
California sexual harassment training requirements are not window dressing either. AB 1825 and SB 1343 harassment training rules require employers of a certain size to provide regular training. Quality training reduces the number of claims that escalate and improves investigation quality. It also protects against punitive damages by showing good-faith preventive efforts. A well-trained workforce understands what is considered sexual harassment in California, how to report it, and why confidentiality has limits.
Investigations should reflect the same values. An employer responsibility sexual harassment California checklist includes prompt, impartial inquiries, documented interviews, and protective steps for witnesses. Do not promise absolute confidentiality during an investigation. Instead, state that information will be shared only on a need-to-know basis, and that the employer will not tolerate California sexual harassment retaliation. Make sure non-disparagement policies are updated with the SB 331 carve-out and are consistent with the National Labor Relations Act’s protections for concerted activity.
Retaliation traps and protected speech
Survivors often ask whether they can discuss their experiences without losing their job. The short answer in California is yes, as long as the discussion concerns factual information about unlawful conduct or the employee reasonably believes it is unlawful. Firing, demoting, or suing for breach of contract over such speech can lead to wrongful termination sexual harassment California claims and separate retaliation liability. Employers should train managers not to police employees’ social media statements about harassment, except in extreme cases involving threats or confidential client data. When a public post names a coworker, HR should focus on anti-harassment measures, not gag orders.
Damages, settlements, and the public record
In a sexual harassment lawsuit California, damages can include economic loss, emotional distress, and, in egregious cases, punitive damages. Sexual harassment damages California often range widely, influenced by the severity of conduct, corroboration, and employer response. Smaller cases may resolve for tens of thousands of dollars, while high-profile matters can reach seven figures. California sexual harassment settlements increasingly retain transparency about facts but conceal only the amount and, if the survivor wishes, their identity. Courts will reject stipulated protective orders that attempt to seal factual information without a compelling reason.
Arbitration used to be a common detour. California and federal law have sparred over mandatory arbitration agreements that cover sexual harassment. Recent federal changes allow employees to opt out of pre-dispute arbitration for sexual assault and harassment claims. Even inside arbitration, California’s confidentiality limits still apply to the parties. Sexual harassment arbitration California may keep the proceeding private, but the parties cannot contract away the right to speak about factual information related to unlawful conduct.
How to file and keep your voice
For individuals considering action, two paths remain reliable. One is internal reporting sexual harassment California via HR or a manager, using the employer’s policy. The other is filing with the California Civil Rights Department sexual harassment unit or the EEOC. How to file a sexual harassment complaint in California is straightforward: submit an intake with the CRD, describe the conduct, identify witnesses, and specify dates. You can request a right-to-sue notice if you want to move quickly to court. Throughout this process, you retain the right to tell your story. No manager, lawyer, or mediator can require you to stay silent about the facts. If you are handed a draft agreement that says otherwise, ask for the SB 331 language and a narrowed scope.
A good sexual harassment lawyer California will explain the california sexual harassment case timeline, evaluate employer liability for sexual harassment California, and identify realistic outcomes. Experienced counsel also protects your ability to speak. Ask your attorney to walk you through the specific paragraphs governing confidentiality and to show you the statutory carve-outs in writing. If you are interviewing firms, ask about their experience with the STAND Act and the Silenced No More Act. A california sexual harassment attorney who negotiates these clauses weekly will spot landmines and keep the process moving.
Common mistakes I still see
Employers sometimes copy a non-disparagement clause from a decade-old template and paste it into a severance. That clause is not compliant in California. Another recurring mistake is a “no comment” press statement that purports to bind the employee from discussing facts. A neutral statement can be agreed upon, but it cannot restrict the survivor’s separate speech.
Claimants sometimes agree to a broad NDA in a multi-state settlement, then learn later that California would not enforce parts of it. If the employee worked primarily in California, insist on California-compliant language from the start. If the employer is national, they may try to standardize the agreement with a Delaware or New York choice-of-law clause. California courts scrutinize those clauses when they undermine California’s public policy. Raise the issue early.
Mediators sometimes propose liquidated damages for breach of confidentiality without exceptions. In California, keep liquidated damages limited to breaches of the settlement amount confidentiality or to disclosure of the claimant’s identity when the claimant elected privacy. Do not attach liquidated damages to factual speech about the harassment itself.
Edge cases and judgment calls
Gray areas still exist. Here are a few that require careful judgment.
- Mixed speech. Suppose an employee posts the facts of harassment along with screen captures of proprietary customer data. The factual narrative is protected, but trade secret disclosures are not. Employers should surgically address the latter without chilling the former. Defamation risk. Disclosing factual information does not immunize knowingly false statements. A defamation claim is still possible if an employee lies. The SB 331 carve-out protects truthful or reasonably believed unlawful conduct disclosures, not malicious fabrications. Multi-claim settlements. When a case includes both sexual harassment and unrelated wage claims, carefully wall off the wage claim confidentiality, if any, from the harassment facts. Courts will scrutinize any broad gag clause buried in a multi-claim deal. Government filings and public records. Parties can agree to protect the settlement amount, yet court filings may inadvertently reveal it through approval motions in class actions or through tax forms. Plan ahead with redactions and confidentiality motions where appropriate, and do not promise absolute secrecy that the court cannot grant. Repeat offenders. Employers sometimes worry that allowing factual disclosure will trigger a wave of claims. The better approach is to address root causes, fix reporting structures, and document remedial measures. Transparency paired with reform reduces long-term risk.
Practical drafting checklist for California agreements
Use this compact checklist when you review any California sexual harassment settlement or separation agreement:
- Include the exact SB 331 carve-out preserving the right to disclose information about unlawful workplace conduct, including harassment, discrimination, retaliation, or any conduct the employee reasonably believes is unlawful. Limit confidentiality to the settlement amount and, if the claimant requests, their identity and identifying details. Do not restrict disclosure of underlying facts. Provide the five-business-day consideration period and the right to consult an attorney for separation agreements with non-disparagement or confidentiality provisions. Carve out testimony rights for subpoenas or agency requests, consistent with AB 3109, and include whistleblower and government-reporting carve-outs. Confirm that non-disparagement does not prohibit factual statements about unlawful conduct, and keep any liquidated damages tied only to breaches of lawful confidentiality, not to factual speech.
Culture and compliance move together
California workplace harassment laws are steering employers toward systems that do not depend on silence. Strong policies, clear training, and credible investigations matter more when confidentiality cannot hide problems. Employees are more likely to report concerns when they know they retain control over their story. That trust helps resolve issues early, before they become lawsuits.
A mature compliance program builds on this reality. Update your california workplace harassment laws training, including california AB 1825 sexual harassment training and california SB 1343 harassment training requirements. Refresh the code of conduct to reflect the Silenced No More Act. Tune your investigation protocol to respect privacy without promising what the law will not allow. Teach managers that retaliation can be subtle, like excluding a reporter from meetings, and that such conduct is unlawful.
Final thoughts anchored in experience
I have watched negotiations transform when both sides accept California’s public policy. Once the employer stops trying to buy silence about the facts, the conversation shifts to what the survivor actually needs: fair compensation, a reference that reflects real work, policy changes, and sometimes an apology. When a claimant understands that confidentiality of the amount is ordinary and that their story remains theirs to tell, trust increases and the deal often closes sooner.
For employees: if you are weighing a sexual harassment claim California, speak with counsel early. Preserve texts, emails, calendar entries, and witness names. Ask about the california sexual harassment statute of limitations and the options with the CRD and EEOC sexual harassment California filings. Remember that your right to discuss the facts of what happened is protected in California, regardless of what an old template might say.
For employers: update your templates, train your HR team, and accept that transparency is part of the settlement calculus now. The goal is not to suppress speech, it is to fix the problem and move forward. The companies that internalize this end up with fewer repeat incidents, lower legal spend, and a calmer workforce.
California has made a policy choice that values truth-telling over secrecy. The statutes that govern confidentiality and non-disclosure in sexual harassment cases all point to the same place: survivors decide whether to speak, and employers should focus on doing right by the law and their people.