Sexual Harassment Claims Exempt from Forced Arbitration

The message is clear: Workers who bring sexual harassment claims against their employers cannot be forced to arbitrate those claims and are free to bring them in court where they belong.

Many companies now require employees to agree to arbitration of any claims that the employee may have against the employer. Most employees do not know that they have signed an agreement to arbitrate, or what arbitration is.

Arbitration is essentially a private court system. Private companies hire retired judges and lawyers to hear cases, confidentially, without any jury. The system favors employers because employers go to arbitration over and over, while an employee usually only sues an employer once in a lifetime. Even when an employee wins in arbitration, the damages award is typically smaller than what a jury would award.

For victims of sexual assault or harassment in the workplace, having your case heard in arbitration can amount to being silenced and told that your harm is less important than a jury might decide. This can be a disastrous outcome that only compounds the injury and harm employees suffer when they are victims of sexual assault or harassment.

Fortunately, in 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA). This federal law allows any employee who signed an arbitration agreement with their employer to nevertheless file in civil court and have their case heard by a jury. The EFAA  is a massive victory in the war to end forced arbitrations of employment disputes generally.

Previously, Courts had determined that the the EFAA only applies to instances of sexual assault and harassment that occurred after the EFAA’s enactment date: March 3, 2022.

Fortunately, a new decision from California’s Second District Court of Appeal has made clear that in California the EFAA allows employees to avoid arbitration even when certain acts of assault and harassment occurred years before March of 2022.

In Jane Doe v. Second Street Corp. (published Sept. 30, 2024), the plaintiff was a woman who worked as a server at a hotel restaurant. In October 2019, the plaintiff was attacked and sexually assaulted outside of work by a coworker. The plaintiff reported the assault to her supervisor and asked not to be scheduled with the assaulter. However the employer continued to schedule the plaintiff and her assaulter on overlapping shifts. In 2021, a new supervisor told the plaintiff that the assault had been her fault and began to regularly schedule the plaintiff and assaulter for the same shifts. Plaintiff began to have panic attacks and suicidal thoughts during her shifts. She finally stopped working on May 10, 2022.

After the plaintiff filed a lawsuit alleging sexual harassment, her employer tried to compel arbitration of the claims. The plaintiff elected to avoid arbitration under the EFAA. However, the employer argued that because the assault and most of the harassment occurred before March 3, 2022, the EFAA did not apply.

The Court of Appeal rejected this argument, concluding that when harassment has continued for a long period of time, the relevant date is the date of the last act constituting a violation of law. In this case, the plaintiff continued to suffer harassment resulting from the 2019 sexual assault until she left her job on May 10, 2022. Therefore the last date she suffered harassment was May 10, 2022, and all of the harassment continuing to that point was subject to the EFAA.

This case is a critical victory for victims of sexual assault and harassment in the workplace. Even if harassment occurred years before the EFAA was enacted, the employee should still be able to avoid forced arbitration and have their claim heard by a jury, so long as the harassment continued past March 3, 2022.

If you have suffered from workplace sexual assault or harassment, please call Hunter Pyle Law at 510-444-4400, or complete a Contact Us form on this page, for a free consultation regarding your case.