Victims of Sexual Harassment at Work: You Can Have Your Day in Court

Over the years, many Californians who were victims of sexual harassment at work were required to resolve their claims through arbitration. They were not permitted to present their claims before a jury or judge in a court of law. This is because they had signed a mandatory arbitration employee agreement with their employer. Fortunately, recent developments in the law now ensure that all victims of sexual harassment at work have the right to present their claims before a jury of their peers in a court of law.

It is common practice for employers to require new employees to sign pre-dispute mandatory arbitration employee agreements as part of the hiring process. Generally, if the employee refuses to sign the mandatory arbitration employee agreement, the employer will withdraw its offer to hire the employee and the employee will have no legal recourse against the employer. Many Californians are not in a position financially to turn down an offer of employment because of an arbitration clause. A mandatory arbitration employee agreement invokes a form of contractual arbitration whereby the employee and employer agree not to sue each other in court and instead submit most disputes (including, until recently, sexual harassment claims) that might later arise between the employer and the employee to a specified arbitration forum. Arbitration is a process of dispute resolution by which one or more impartial, third party, private, unofficial decisionmakers (instead of a judge or jury in a court of law as otherwise provided by law) renders a decision after an evidentiary hearing at which both the employer and employee have the opportunity to be heard.

The basic requirements for binding employment arbitration in California are as follows:

The agreement must

• Provide a mechanism by which the employer and employee can choose the third party decisionmaker (who usually holds the title of “Arbitrator”).
• Provide for a mechanism designed to ensure the neutrality of the Arbitrator in rendering a decision resolving the dispute.
• Provide the means for both the employer and employee to be heard before the Arbitrator.
• Require the Arbitrator to make a binding written decision resolving the dispute.
• Not limit remedies provided by statute, such as punitive damages and attorney fees.
• Provide for adequate discovery in arbitration (discovery is the method in litigation by which the claimant [employee] gathers evidence aimed at proving her case and the respondent [employer] gathers evidence in an effort to defeat the claimant’s case).
• Provide that the employee will not have to pay unreasonable arbitration fees or costs.

Statistically, most workers do not bring a claim or have the need to bring a claim against their employer. However, when you are the victim of sexual harassment on the job, statistics do not matter. While certain claims, such as claims for workers’ compensation benefits, were exempt from mandatory arbitration, employers could force victims of sexual harassment at work who had signed mandatory arbitration employee agreements to resolve their claims in arbitration. Not having the right to bring a claim in a court of law could be a devasting blow for a victim of sexual harassment.

Empirical data has shown that arbitration favors employers. Compared to litigation in a court of law, employees in arbitration win less often and when they do prevail, they win smaller awards. Arbitration is a powerful tool to increase profits for companies and prevent employees from vindicating their rights.

In recognition of the inherent unfairness of employment arbitration, on March 3, 2022, President Joseph Robinette Biden, Jr. signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, U.S. House of Representatives bill 4445. This law amended the Federal Arbitration Act (9 United States Code sections 1-16, 201-208, and 301-307) so that employees who had signed pre-dispute mandatory arbitration agreements submitting to arbitration disputes with their employer could nonetheless pursue a claim for sexual harassment in a court of law. This law significantly strengthens the Nation’s safety net of anti-discrimination laws.

An experienced employment attorney can guide you through the litigation process and seek all the damages to which you are entitled at the trial of your matter. If you were fired for complaining of sexual harassment, you may be entitled to:

• Lost Pay. An award of earnings and benefits you would have earned up to the time of trial but for your former employer's unlawful conduct, minus the amount you did earn or could have earned if you had mitigated the loss by seeking or securing comparable employment.
• Emotional Distress Damages: A monetary award for the emotional distress, mental anguish, and other psychic injury you suffered because of your former employer’s wrongdoing.

While litigating a sexual harassment claim in a court of law, an employee will still have the option of seeking to resolve his or her claim through mediation. A mediation can provide an opportunity for you to be heard in a safe and private environment. Mediation is a process by which a neutral person or persons help to facilitate communication between the parties so they can reach a mutually acceptable settlement.

In the past, employers would often agree to settle a sexual harassment claim in mediation only if the agreement contained a confidentiality clause. Employers thereby shielded harassers, who were often highly paid supervisors, from the consequences of their acts. Serial harassers could change employers and continue to advance in their careers without fearing that their past conduct would become known. This enabled serial harassers to continue harassing individuals in the workplace for years. Confidentiality clauses ensured no word would spread of their harassing or discriminatory behavior. Secret settlements enabled sexual predators to avoid the public eye and continue tormenting and preying on innocent victims. This forced some individuals targeted by harassment to remain constantly vigilant and even quit their job to evade a serial harasser. Victims become economically, professionally, and emotionally disadvantaged. Some victims would leave the workforce altogether. California anti-discrimination laws go back several decades, yet workplace harassment has continued to be a significant problem. With the inclusion of the California Stand Act in Code of Civil Procedure section 1001, any provision within a settlement agreement that prevents or restricts the disclosure of factual information related to a claim filed in a civil action or a complaint filed in an administrative action regarding workplace sexual harassment is prohibited. This furthers the public policy that disfavors the secret settlement of certain civil actions in which the public has a strong interest, such as sexual harassment.

Sexual harassment can affect you both economically and emotionally. If you were subjected to workplace sexual harassment in California, you should talk about the viability of a legal claim with the experienced attorneys at the Kokozian Law Firm, APC. Call us at 323.857.5900 or contact us via our online form. We advance all costs. No recovery, no fee.