Why a CA Court’s Ruling is a Win for Survivors of Workplace Sexual Harassment 

It’s a situation that’s all too common. 

Cassandra worked as a product sales specialist at GE. Although she’d only been there for two years, she was already regularly recognized as one of the company’s top performers.

But when she complained to GE about her supervisor’s repeated sexual harassment, the company never followed up on her report with an investigation.

So, Cassandra filed a lawsuit in California state court, claiming that GE failed to take appropriate action in response to the harassment — and even retaliated against her for speaking out about it.

But in response, Cassandra was told that her suit against GE couldn’t be heard in a public court at all. As a condition of her joining the company, Cassandra had unwittingly signed an agreement that required any disputes with GE be handled behind closed doors, through mandatory arbitration.

This is a private resolution process that’s conducted out of the public eye and is often bad news for employee plaintiffs — so much so, that the Biden administration officially banned its use in cases of workplace sexual harassment in 2022.

President Biden’s new anti-arbitration law raises a tough legal question in Cassandra’s case: if her lawsuit was filed the year before this landmark legislation, would she now be able to sue GE in California court?

In this blog post, we’ll walk through Cassandra’s sexual harassment case, explain how recent legislation is fighting to end mandatory arbitration for sexual harassment survivors, and outline steps to take if you’re experiencing workplace sexual harassment.

If you have questions, please contact our employment attorneys online or call (866) 442-6755.

Cassandra’s Case: A Hostile Work Environment In California

After working at GE for two years, Cassandra was appointed a new direct supervisor. The harassment began nearly immediately.

According to Cassandra, he regularly talked openly about sexually explicit topics at work, in front of her and other employees.

The supervisor’s inappropriate discussions soon turned into physical sexual advances. During one team meeting, Cassandra was groped by her supervisor, who later also reportedly gave her a piece of chocolate that she didn’t know had been laced with THC.

This pattern of unwanted advances and offensive behavior, perpetrated over the course of months, created what is legally considered a “hostile work environment” for Cassandra.

Both California and federal law defines “hostile work environment” as a type of sexual harassment that happens when someone’s offensive behavior becomes so pervasive or severe that it interferes with an employee’s ability to do their job.

In these situations, the misconduct doesn’t have to be linked to an offer of economic or professional benefits. It doesn’t even have to happen to you directly.

As long as the behavior creates an atmosphere that’s so severely intimidating or offensive that it impacts your job performance, you could be experiencing workplace harassment. 

After experiencing this inappropriate behavior, Cassandra did the right thing: she made an official report to GE.

Under both federal and California law, employers have a duty to maintain a work environment that is free from unlawful harassment and discrimination (on the basis of sex, or otherwise).

And when harassment happens, it’s a company’s responsibility to take immediate action to correct the situation. 

Not only did GE fail to respond adequately to Cassandra’s reports of harassment, she also claimed that the company retaliated against her for making the complaint.

In short, Cassandra felt that GE management was punishing her for blowing the whistle on her coworker’s abuse by not providing her the basic professional support she’d enjoyed before, and even passing her over for promotion.

In legal terms, this is called retaliation, and it’s against federal and California labor law. 

At this point, Cassandra filed a lawsuit in California court against GE for their failure to stop the sexual harassment and unlawful retaliation, claiming damages for emotional distress and lost wages and benefits. 

Employer Arbitration Agreements: Protecting Companies At Employees’ Expense

But not long after Cassandra filed her suit, she was told by GE that her lawsuit couldn’t go to trial at all. According to GE, when Cassandra joined the company, the contract that she’d signed required that any future disputes between her and the company would be automatically handled through private arbitration — not in the courts. 

Companies often include these “mandatory” or “forced” arbitration clauses in their employment contracts.

Although they claim that the private dispute resolution process is faster and easier than litigation in court, it also is usually far more favorable to the defending companies than the employees seeking justice — especially when it comes to sexual harassment. 

Less time in court allows companies to limit their liability for employee wrongdoing, reduce the cost of potential damages, and preserve their reputation.

Meanwhile, arbitration also makes it more difficult for survivors of sexual harassment to get the settlements they’re owed, since the private process decreases plaintiffs’ leverage and the possibility for public accountability.

It’s for these reasons that in 2022, President Biden approved new national legislation invalidating employers’ mandatory pre-dispute arbitration agreements in sexual harassment and assault cases.

This law, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, would allow workers like Cassandra to finally told their perpetrators and employers accountable in a public court.

Under the new law, employees alleging sexual assault and/or harassment could override a company’s predispute arbitration agreement, even if they’d already signed it.

For Cassandra, there was one problem, though: The law did not apply to cases of sexual harassment or assault that were raised before the law’s date of enactment, i.e., March 3, 2022.

Since Cassandra filed her lawsuit a year prior, in March 2021, the law invalidating existing arbitration agreements could not technically be applied retroactively to her case.  

However, a closer look at the arbitration agreement itself raised some red flags. Under California law, legal contracts can’t be enforced if it’s “unconscionable,” or deeply unfair.

For instance, if the terms of the contract are slanted severely towards the interests of one party over the other, or if one of the parties was under duress when signing.

In this case, not only did Cassandra report feeling pressured by GE’s HR department to quickly review and accept the terms of all onboarding documents if she wanted to keep her job, but the language of the arbitration clause itself was vague and misleading. 

So, even though Cassandra’s arbitration agreement couldn’t be invalidated by the 2022 law, a California judge found that the contract that she’d signed was unreasonably skewed to benefit GE and exploit employees.

Ultimately, the arbitration clause was deemed legally unenforceable anyway, and Cassandra was freed to pursue her lawsuit against GE in court.

This ruling is a promising win for California employees who are concerned about being forced into arbitration if they sue their employer for violating their rights.

For one, Cassandra’s case is a warning to California employers who would try to use vague and indecipherable legal language to compel employees into agreeing to contractual terms that they don’t fully understand.

This should also be encouraging for any California employee who has specifically suffered sexual misconduct at work.

The 2022 Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act was an important national step towards dismantling the structures perpetuating toxicity and abuse in the U.S. workplace.

Even though the 2022 Act didn’t officially apply in this case, Cassandra’s suit is a sign that the new law has teeth — that California courts are looking critically at the unfair ways that employers are using arbitration agreements to hide their misconduct.

What Should I Do If I’m Being Or Have Been Sexually Harassed At Work? 

First, know your rights: your employer has an affirmative duty to provide a work environment that is free of sexual harassment for all employees, and it’s their responsibility to immediately respond to incidents of sexual harassment with corrective action. 

Make a record of your experience that can be used to file a report and support your account: include in it as many specific details about the incidents of misconduct, any attempts you made to inform your employer of the situation, and how you and your professional performance have been affected by the behavior.

Be wary, however, of sharing details of your case on social media: any information you post can be used by your employer or a defendant to discredit you.

Get In Contact With An Employment Lawyer As Soon As Possible

Most importantly, know that you don’t have to do this alone. Consult with an experienced employment attorney who can help you navigate the nuances of the law and details of your specific circumstances.

What type of harassment you’ve experienced, which federal, state, and local laws apply to your case, and what kind of remedies that litigation makes available to you. 

If you work in California and have suffered sexual harassment in the workplace, Ottinger Employment Lawyers can help you get the justice you deserve.

For over two decades, our experienced advocates have been fighting on behalf of workers subject to unlawful discrimination, harassment, and hostile work environments.

Visit one of our offices in Los Angeles or San Francisco, or contact us online or by phone to speak to an attorney about your case.

Robert Ottinger, Esq.

Robert Ottinger is an employment attorney who focuses on representing executives and employees in employment disputes. Before starting his firm, Robert slugged it out in courtrooms trying cases for the government. Robert served as a Deputy Attorney General for the California Department of Justice in Los Angeles and then as Assistant Attorney General for the New York Attorney General’s Office in Manhattan.

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