What the End of Forced Arbitration Means for Workplace Sexual Harassment Claim

Sexual harassment victims now have a new weapon at their disposal. These cases are now exempt from forced arbitration clauses. 

This is a huge new development that should help victims resolve these cases quickly, and hopefully, it will deter sexual harassment in the workplace.  

The 2017 #MeToo movement had a massive impact in breaking the silence around workplace sexual harassment and violence.

But five years later, many perpetrators of workplace misconduct have been able to escape public censure for their crimes.

Survivors of harassment have been angry and shocked to learn that they were unable to sue their abusers in court due to mandatory arbitration policies: clauses in their employment contracts that force sexual harassment or assault suits into the privacy of arbitration proceedings.

However, a new law banning forced arbitration in sexual assault and harassment cases combats some of the secrecy that’s allowed workplace abuse to go publicly unchallenged.

The March 2022 Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act is a significant victory for those who have suffered sexual assault or harassment at work.

The law empowers them to hold perpetrators accountable for their misconduct in a public forum — and get more considerable settlements when challenging abusers who know they can’t rely on forced arbitration to hide their wrongdoings.

Let’s unpack what kind of workplace conduct the law protects against, how this landmark legislation changes the sexual harassment complaint process, and what it means for survivors looking to make a case moving forward. 

If you believe you have experienced workplace sexual harassment in New York or California, please contact the sexual harassment lawyers at Ottinger Employment Lawyers today. 

What Does Sexual Harassment Entail According to the Law?

Sexual harassment is a form of workplace discrimination illegal under federal, state, and some local laws.

The United States Equal Employment Opportunity Commission (EEOC) broadly defines workplace sexual harassment as follows:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

All individuals are protected under the law from unwelcome sexual conduct in their work environment.

This includes any harassment on the basis of sex (as self-identified or perceived), sexual orientation, gender expression, or gender identity.

Historically, sexual harassment has been treated as an issue primarily affecting women.

But any individual — regardless of sex, gender identity, or expression — can experience or commit unlawful sexual harassment. EEOC data shows that men file about one in five sexual harassment complaints.

Workplace harassment isn’t limited to your employer or direct supervisor: a coworker, an employee in another office, a client, or a customer can also be a perpetrator.

Offending conduct does not have to be explicit of a sexual nature to be grounds for a sexual harassment claim.

For example, an individual who repeatedly makes hostile comments about a coworker for being a woman (or man, or a person expressing their gender identity) is also violating the law.

What Does the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act Mean for Those Filing Complaints?

Under the Act, signed into law by President Biden on March 3, 2022, individuals with complaints of sexual assault and/or harassment are no longer bound to mandatory arbitration provisions they may have signed as a condition of employment. 

When an individual signs a mandatory arbitration clause, they are forced to settle any claims of wrongdoing through arbitration: a private dispute resolution process thought to be faster and cheaper than litigation in court.

These mandatory arbitration clauses are usually included in employment contracts or hiring agreements, which is why they are “predispute.”

They compel an individual to agree ahead of time that any claim of sexual assault or harassment they might make in the future will be resolved through arbitration instead of in court.  

But the benefits of arbitration serve employers and perpetrators far more than survivors: less time in court allows companies to limit their liability for employee wrongdoing, reduce the cost of potential damages, and preserve their reputation.

Survivors can feel that their experiences, desire for restitution, and perpetrator accountability take a backseat to their employer’s wish to have a dispute settled as quickly and quietly as possible.

Plus, by removing the threat that wrongdoing will become public, employers have decreased survivors’ leverage and made it more challenging for them to get the settlements they are owed. That changes now.

The Act does not invalidate predispute mandatory arbitration agreements per se: instead, it allows employees bringing a complaint of sexual assault and/or harassment to override a previously signed predispute arbitration agreement and choose to file a lawsuit in the courts (as an individual or in class/collective actions).

Under the law, an individual with a sexual harassment claim could still choose to undergo the arbitration process — but the choice is up to them, not their employer.

The new law took effect immediately upon its March 3, 2022, signing and applies to all predispute arbitration agreements regarding sexual assault and/or harassment, including those already in place.

However, there are a couple of important details and limitations to note:

• The Act does not apply to cases of sexual harassment or assault that were raised before the law’s date of enactment, i.e., March 3, 2022
• Arbitration agreements are still enforceable if the parties involved enter into them after a dispute or claim of sexual harassment/assault has been raised
• The Act bars enforcement of predispute arbitration agreements ONLY for cases of sexual assault and harassment. If an individual has other claims to bring against their employer (e.g. wrongful termination, racial discrimination), those may still be bound to a previously signed mandatory arbitration agreement

In the months to come, as more of these cases are tried, even more, specific limitations and applications of the Act may come to light.

Be sure to consult with an experienced employment attorney to determine how the law applies to your specific circumstances.

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.

Understand the process for reporting a complaint in your city or state. Sexual harassment is illegal under federal law according to Title VII of the Civil Rights Act of 1964, but this only applies to employers with 15 or more employees.

Many state sexual harassment laws, however, do not have this limitation. For example, under California and New York state law, all employers — regardless of number of employees — can be sued for unlawful sexual harassment.

There are even some local statutes, like New York City’s Human Rights Laws, that also prohibit unwelcome sexual conduct in the workplace. 

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’ve suffered sexual harassment in the workplace in the state of California or the New York City area, reach out to Ottinger Employment Lawyers today to speak with an experienced employment attorney.

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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