28 Trial Lawyer • Summer 2022 Shenoa Payne By Shenoa Payne OTLA Guardian Mary is a 27-year-old female who works in a lumber mill. She is the only female worker in the mill. The lumber mill has a “locker room” environment, where workers use foul language and talk openly about sexual topics. Mary’s co-worker, Bob, is 54 years old, has worked in the lumber mill for 22 years and has never had a female coworker in the mill before. He thinks it’s “man’s work” and doesn’t think Mary can keep up with her male coworkers. He consistently let’s Mary know his opinion. Bob hangs photos of scantily clad women around the break room, uses a coffee cup with breasts on it and loudly talks about his sexual experiences with his wife. Bob thinks this “locker room” environment shouldn’t have to change just because a woman is present, and he tells Mary she can just leave if she doesn’t like it. Mary complains to her supervisor, who tells Mary he’ll deal with it. Unfortunately, her supervisor goes directly to Bob and tells Bob that Mary complained about him. Bob gets angry and confronts Mary and calls her a “bitch” and that if she doesn’t like working there, she should just quit. Within a week, Mary is written up for poor performance, inability to keep up with her coworkers and inability to get along with her coworkers. She is ultimately terminated. During her termination meeting, Mary states she thinks her termination was retaliation for complaining about gender discrimination and harassment. Mary’s supervisor hands her a boilerplate severance agreement, which she has 21 days to review and sign. The agreement offers Mary $5,000 to waive all her claims against her employer, including claims for discrimination and harassment under ORS 659A.030. Mary must agree, in consideration for the monetary severance, to keep confidential the amount of the settlement, the existence of the settlement and all information related to Mary’s employment relationship with the employer. Mary doesn’t want to sign the agreement because she feels she shouldn’t be gagged from talking about what happened to her at the lumber mill, but she also needs the money. NDA protections The Oregon Workplace Fairness Act, SB 726 (2019), prohibits employers from requiring or coercing employees to enter confidentiality agreements or non-disclosure agreements (NDAs). In settlement and severance agreements arising out of a claim for harassment or discrimination, these agreements have been unlawful in Oregon since October 1, 2020.1 Certain provisions of the Oregon Workplace Fairness Act, SB 726 (2019), were intended to curb this practice by prohibiting the use of NDAs when resolving a cause of action involving discrimination or harassment under ORS 659A.030 or 659A.112, or sexual assault. An employer may only enter into an NDA if an employee claiming to be aggrieved by harassment, discrimination or sexual assault, if the employee requests to enter such an agreement. Employers also are required to inform employees of their right not to be required or coerced into entering an NDA. The main purpose behind SB 726 was to assist employees in shining a light on discrimination, harassment and sexual assault in the workplace. When workers sign an NDA, they can’t talk about their experiences anymore. “Lots of us believe that sunlight is a disinfectant and when workers are able to share what has happened to them, it is less likely to continue to happen to them or other people.2 Buying an employee’s silence has long led Coercion NDA
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