Sexual Assault and Harassment Claims No Longer Subject to Secret Arbitration
| Read Time: 3 minutes | Sexual Harassment

On March 3, 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. This new law—a result of the #MeToo movement—means that employers cannot force employees into secret arbitration for claims of sexual harassment or sexual assault.

Since arbitration generally tends to favor employers over employees, this law should have the dual impact of identifying repeat harassers and companies whose culture is permissive of sexual harassment as well as providing a employees with the ability to seek full compensation for harms.

As Congress noted in passing this bill, the secretive nature of arbitration “has allowed outrageous violations, in some cases years of sexual harassment and predation, to remain hidden from view and therefore to continue.” Moreover, forced arbitration is a “private system of arbitration that often favors the company over the individual. The Act aims to change that. 

What Types of Claims Are No Longer Subject to Forced Arbitration?

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the “Act”) makes any pre-existing forced arbitration or mediation agreement unenforceable as applied to claims of sexual harassment or sexual assault.

Under the Act, “sexual assault” is any claim involving a “nonconsensual sexual act or sexual contact” as defined by state or federal law. “Sexual harassment” is any claim involving “conduct that is alleged to constitute sexual harassment” under state or federal law.

Critically, the act borrows from state law in determining whether claims involve sexual harassment or assault, and allow the employee to sue in state court. This is a big deal given how protective and expansive California state law is in protecting sexual harassment and assault survivors.

California has many laws in place to protect you from workplace sexual harassment. For example, the Fair Employment and Housing Act prohibits sexual assault and harassment against employees by employers, their customers, independent contractors, and other employees.

What Counts as Sexual Harassment in California?

woman harassed at work

Under FEHA, “harassment” consists of “conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” This definition means that nearly any offensive conduct motivated by sexual desire OR animus, if sufficiently severe, can be illegal sexual harassment.

Even a single instance of harassing conduct is sufficient to establish liability for harassment if the conduct has unreasonably interfered with the employee’s work performance or created an intimidating, hostile, or offensive working environment. Quid pro quo harassment—or harassment where an supervisor offers to give you preferential treatment, or withhold negative treatment in exchange for sexual or romantic favors—is always harassment under California law when it is unwelcome.

Importantly, “sex” is defined under FEHA and other anti-harassment laws to include gender, gender identity and expression, gender-related appearance or behavior, pregnancy, childbirth, breastfeeding or medical conditions related to pregnancy, childbirth, or breastfeeding, and sexual orientation.

Workplace Sexual Harassment Can Take Many Forms

Sometimes harassment based on an employee’s sex or gender identity is overt, such as sexual assault. Often, harassment is more subtle. Maybe your supervisor openly discusses their sex life in uncomfortable detail. Maybe you are treated less favorably than the other gender, or are denied equal benefits. Sometimes employees who put up with harassment are treated more favorably than others.

Examples of coworkers’ sexual harassment may include:

  • Quid pro quo offers: Using power or position to coerce you into sexual favors by offering job-related benefits or preferential treatment;
  • Calls, texts, emails, or letters of a sexual or romantic nature;
  • Social media messages or posts of a sexual or romantic nature;
  • Pornography or sexual pictures or cartoons without consent;
  • Leaving or sending unwanted gifts of a sexual or romantic nature;
  • Spreading sexual or romantic rumors;
  • Stalking;
  • Actual or attempted assault;
  • Touching, rubbing, massaging, leaning over, cornering, hugging, patting, stroking;
  • Sexual comments, jokes, innuendos, or stories;
  • Using rude or insulting language about either sex;
  • Making sex-related comments about a person’s physical characteristics, actions, or sexual preferences;
  • Asking about sexual history, preferences, fantasies, personal life;
  • Whistling or cat calling;
  • Looking a person up and down, staring;
  • Suggestive gestures, like winking, blowing kisses, smacking or licking lips;
  • Imitating sexual movements or making inappropriate gestures;
  • Sexual comments about a person’s body, clothing, or personal life;
  • Turning work discussions into sexual conversations;
  • Bragging about sexual prowess.
  • Co-workers making vulgar comments about your changing body, your need to take lactation breaks, etc.

If you have reported sexual harassment or do not know how to report, you should contact an experienced sexual harassment attorney. We can help you understand how to protect yourself and seek justice.

Talk to an Experienced Employment Lawyer Today

At King & Siegel LLP, we are passionate about fighting social injustice in the workplace. You should never face sexual harassment at work.

Need legal help? We provide free, confidential consultations to workers. You should contact us as soon as possible to make sure your claim is still within the time limits set by law. If you have experienced sexual harassment, contact us today through our website or give us a call at (213) 465-4802 to schedule a free consultation.

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Julian Burns King graduated with honors from Harvard Law School and founded King & Siegel in 2018. As head of the Firm’s discrimination and harassment practice areas, she champions the rights of working parents and victims of workplace discrimination and harassment. She has been recognized as a “Rising Star” by Super Lawyers annually since 2018 and has recovered tens of millions of dollars on behalf of her clients.

Read More Articles by Julian Burns King