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. Continue reading