The future of California sexual harassment lawsuits hangs in the balance, as the public is closely monitoring word of Governor Jerry Brown’s decision whether to sign the controversial AB 3080. The bill would result in direct impact to workplace harassment and gender discrimination claims by impeding an employer’s ability to limit disclosure and discussion of such agreements with mandatory arbitration agreements signed as a condition of employment.
As our L.A. sexual harassment attorneys recognize, the bill if passed would amend a portion of California Labor Code (specifically adding a Section 432.4) outlawing forced arbitration agreements barring job-seekers (employees or independent contractors) from speaking out publicly or pursuing civil court remedy against employers who fail to protect them from sexual harassment or gender discrimination. (The bill doesn’t specifically use the term “arbitration agreements,” but those policies are what is targeted and would be affected.)
Some have argued that what’s in the bill is already largely covered within provisions already existing in the California Fair Employment and Housing Act (FEHA), which is the state’s anti-retaliation law shielding employees from retaliation if they have a reasonable belief of victimization from unlawful employment practices. Others say the bill, if passed, will be widely open to judicial challenge. In 1987, the U.S. Supreme Court ruled in Perry v. Thomas (and again in 2011 with AT&T Mobility LLC v. Concepcion) that the Federal Arbitration Act requires arbitration contracts generally be on equal footing with other types of contracts and that state law can’t interfere with federal policy.
Brown has until the end of this month to decide whether to sign AB 3080.
California Employment Arbitration Clauses Not Infallible
Federal law (specifically 9 U.S.C. section 2) holds that arbitration agreements are enforceable and valid, except where there are legitimate legal grounds to revoke them based on credible assertions of things like duress or unconscionable terms.
Los Angeles sexual harassment attorneys have worked with clients to resolve employment discrimination claims in both arbitration and civil litigation settings. You should not allow the fact that you signed an arbitration agreement stop you from seeking legal advice to determine whether you have a valid claim and if so, the best way to pursue it.
It is, however, well-known that arbitration agreements are less likely to be won by employees and those who do win may secure far lesser awards than they statistically would in civil litigation through the courts.
Neither sexual harassment nor the ethical/ legal conundrums arising from mandatory arbitration agreements are new. However, the #MeToo movement has renewed attention on the role arbitration agreements may play in silencing those who have complained about sexual harassment (most especially in Silicon Valley and Hollywood). For instance, an ex-Uber engineer signed one, as did one-time FOX News anchor Gretchen Carlson, and both women say they only discovered they had waived their right to legal resolution in the courts after they reported their harassment. Both had also accused their employers of failing to protect them and in some instances fostering that toxic work culture.
California is one of only a few states to attempt to shut out such agreements. Vermont tried. Washington State and New York both have both restricted certain clauses. However, it does appear no state law can totally outlaw such agreements, thanks to those earlier U.S. Supreme court decisions.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 714-937-2020.
California approves a law that helps sexual harassment survivors sue employers, Aug. 28, 2018, By Alexia Fernandez Campbell, VOX.com
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CBS CEO Latest in Line of Powerful Men Accused of Sexual Harassment, Aug. 8, 2018, L.A. Sexual Harassment Attorney Blog