Sexual Misconduct in the California Workplace: Your Legal Rights
Sexual harassment has been a societal problem forever. In recent years, many victims of sexual assault and sexual harassment in the workplace have been silenced by their employers through arbitration agreements. Arbitration agreements take away of a victim’s right to Court and the use of a jury. Thus, not only is their claim being adjudicated by one adjudicator instead of a jury of their peers, worse, the filing is not public and thus no one ever learns of the employer’s misconduct.
In recent years, the Supreme Court of the United States has made rulings making arbitration agreements valid even if they must be signed to obtain employment. This allows employers to take advantage of their employees’ need for work and lack of legal knowledge to strip them of their voice and force them into a proceeding biased towards corporations.
The rise of the #metoo movement, though, has shed light on this issue. And, one of its biggest achievements has just occurred., which is the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which was passed, on February 10, 2022. Below is a brief Q&A on the Ending Faced Arbitration of Sexual Assault and Sexual Harassment Act:
Q: What is arbitration?
A: Arbitration is an alternative to litigation in which disputes are argued privately before an arbiter whose binding decision cannot be appealed, except upon very limited grounds.
Q: How have companies and employers used arbitration clauses to silence victims of sexual misconduct?
A: Arbitration clauses embedded in employee contracts force victims to relinquish their rights to prosecute their perpetrators in Court by subjecting them to proceedings that are not of public record. Often, the discovery available and the evidence permitted is limited. Moreover, many errors in factfinding and law cannot be overturned. Because the publicity from sexual harassment and sexual assault suits is often one of the driving factors in deterring such conduct, arbitration agreements overall can have an effect of encouraging sexual assault and sexual harassment without fear of adequate consequence.
Q: What industries are arbitration clauses most common in?
A: Arbitration clauses are standard in employee contracts across all industries. However, they affect low-wage earners and employees of large corporations asymmetrically because of the drastic difference in bargaining power between them.
Q: How does the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act protect victims of sexual misconduct?
A: The bill bans arbitration agreements on cases involving sexual misconduct allowing victims/survivors to seek justice in Court. By allowing them to make public complaints, they are not silenced as they once were in private arbitration proceedings. By permitting them to take advantage of the full amount of discovery and thus present more evidence, it provides them a fairer avenue for justice. By allowing their case to be adjudicated by a jury of peers as opposed to an arbitrator who is often a retired judge or perhaps another person of a background that is not sympathetic to a victim/survivor, they are more likely to have a fair trial on the merits of their case. And with greater avenues of appeal, victims/survivors have a better chance to remedy an unfair verdict or judgment.
If you or a loved one have been a victim of sexual assault or sexual harassment in the workplace, contact us at 323-693-8490 to determine what options you may have.