Can Employers Silence Employees Who Talk About Discrimination?
One of the most common questions we get from people who have experienced sexual harassment and discrimination is some version of this:
Will I have to sign an NDA if I report what I'm experiencing?
Can they silence me or sue me if I talk about my experience?
HR said I can't talk about what happened to me - is that true?
These questions speak to a rhetoric of abuse that is pervasive in culture. That rhetoric says it is not the abuser who is aggressive, but the person who talks about abuse. For example, the abuser was joking, drunk, or didn't mean it. But, the person who labels abuse is treated differently and often accused of being scary or a danger.
That rhetoric is built to perpetuate abuse. In order to change from being a culture of abuse, we must identify and label abusive behavior. The person engaging in abusive behavior could then explain their behavior, justify it, or say they were joking, drunk, and didn't mean it. They could also learn and change.
It is by labeling abuse that we make a first step towards creating safety. In many ways, harassment, discrimination, and other abuses are no different than any other danger. For example, if there is ice on the sidewalk, the first step towards safety is to let people know the danger exists. When we try to silence people who have experienced abuse, it is like pretending the ice isn't on the sidewalk - dangerous to everyone walking over the icy sidewalk or encountering the abuser. When we encourage open dialog, we can let people know about dangers and work together to correct them.
With that in mind, Oregon has taken specific steps to recognize the importance of talking about workplace abuses, specifically discrimination protected under ORS 659A.030, ORS 659A.112, and ORS 659A.082. This happened through what is called the Workplace Fairness Act.
Oregon passed the Workplace Fairness Act in 2019, making it illegal for employers to require employees to keep secret their experiences of sexual harassment and discrimination, including disability discrimination and discrimination based on military service.
Under this new law, the deadline to file a lawsuit for harassment and discrimination (or the "statute of limitations") was extended to 5 years for incidents happening after October 2020.
Every Oregon employer is required to have a sexual harassment policy that complies with the Workplace Fairness Act provisions.
It is illegal to require an employee to stay silent about sexual harassment and discrimination as a condition of their job.
Beginning January 1, 2023, employers may experience a penalty for attempting to silence and employee about discrimination.
There is still a lot of work to do to make workplaces safe, but this is a start!