No More Forced Arbitration In Sexual Harassment Cases

Victims of sexual harassment in the workplace can sue, and can receive serious and significant damages for their mental and emotional suffering, as well as lost wages and other damages that stem from the abuse.

Employers know this, and for a long time, to try to combat these lawsuits, employers resorted to mandatory arbitration contracts as conditions of employment.

So, to work for a company, and as a precondition of working for the company, the employee would have to agree that if he or she were a victim of harassment in the workplace, the employee could not sue in court—the only thing the employee could do was bring a claim in arbitration.

What is Arbitration?

Arbitration is a forum that is not a court, takes the case out of the hands of the jury, and which tends to be very employer-friendly. It also limits the amount of discovery that can be done on your case, making it harder to prove your case. Many employers have close relations with arbitration companies, making them quite employer-friendly.

But as of last summer, the practice of forcing sexual harassment victims to arbitrate their case, instead of being able to go to court, has been outlawed.

How Does the Law Work?

The new law, which was passed in August 2022, applies to all agreements signed before or after the law was passed—meaning that if you signed an agreement agreeing to arbitrate sexual harassment claims even before the law was passed, that agreement (or the relevant parts of it), are no longer valid and enforceable.

The law also outlaws any waivers of class actions related to sexual harassment claims. This was another common tactic that employers used to discourage lawsuits: forcing employees to agree that if they have a claim, that the claim must be brought individually, and not as a class action.

Victims of sexual harassment at work can still, if they so choose, opt to voluntarily submit to arbitration. While that is not often a wise choice, arbitration may provide some degree of privacy that a lawsuit in court may not provide.

Some Limitations

However, the law does not apply to any cases that were pending when the law was passed—that is, if your case was already filed in court or in an arbitration, at the time the law was passed, the new law would not apply.

This is a big step and a big win for victims of sexual assault and harassment in the workplace. But it is limited to sexual harassment.

Other kinds of employment discrimination cases, or violations of other employment laws, such as those that may allege violations of a family leave act, Americans with disabilities, or pregnancy discrimination, all can still be brought to arbitration.

Contact the San Jose employment law lawyers at the Costanzo Law Firm today for help if you have been a victim of sexual harassment at work.

Sources:

eeoc.gov/newsroom/eeoc-chair-applauds-passage-ending-forced-arbitration-act

news.bloomberglaw.com/daily-labor-report/forced-arbitration-ban-good-start-but-more-needs-to-be-done