If you've experienced sexual harassment at work in California, you have the right to take your case to court - even if you signed an arbitration agreement. 

Background

In 2022, Congress passed a law called the "Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021" that lets sexual harassment victims choose to go to court instead of being forced into private arbitration. Some employers tried to get around this by putting language in their contracts saying California law would apply instead of federal law, which would arguably require arbitration of sexual harassment claims. 

Casey v. Superior Court

In Casey v. Superior Court, the California Court of Appeal made sure employers cannot contract around the federal law. The court held that employers cannot use state law to force sexual harassment victims into arbitration. Even better, if your case includes other claims along with sexual harassment (like unpaid wages or discrimination), you can take ALL of those claims to court too.

What is Arbitration?

Arbitration is a private process for resolving legal disputes outside of court. When you sign an arbitration agreement, you typically give up your right to sue in court. Instead, your case is decided by one or more arbitrators in a private proceeding. Many employment contracts include these agreements, often without employees fully understanding what they're signing away.

Why Court May Be Better Than Arbitration

Arbitration happens in private, with decisions made by an arbitrator instead of an acting judge or jury. Many people feel the arbitration process favors employers, who often choose and pay for the arbitrators. Court cases, on the other hand, are public and can help expose patterns of workplace harassment, which an employer may want to obscure. Moreover, going to court gives the opportunity for the case to be evaluated and determined by a jury.

Understanding Your Rights

The timing of your harassment is important. The federal law applies to sexual harassment that happened after March 3, 2022. This is true even if you signed an arbitration agreement before that date. For example, if you signed an employment agreement with an arbitration clause in 2020, but the harassment occurred in 2023, you can still choose to take your case to court.

What About Your Employment Agreement?

Many California employers include arbitration agreements in their employment contracts, often buried in the paperwork you sign when starting a new job. These agreements typically require you to handle all workplace disputes through arbitration rather than going to court. Before this change in the law, employees may have felt trapped by these agreements. Now, this case and others make it clear that these agreements cannot force you to arbitrate sexual harassment claims, regardless of what the contract says.

What is Sexual Harassment in the Workplace?

Generally speaking, in California, sexual harassment in the workplace occurs when an employee is subjected to unwanted sexual advances or other unwanted verbal or physical conduct of a sexual nature. There are two main types:

1. Quid Pro Quo Harassment - This occurs when job benefits or conditions of employment (like promotions, assignments, or keeping one's job) are made contingent on the employee accepting sexual advances or conduct. For example, if a supervisor implies an employee must go on a date with them to get a promotion.
2. Hostile Work Environment - This happens when unwanted sexual conduct is severe or pervasive enough to create an intimidating, hostile, offensive or abusive work environment.
   

Some examples of harassing conduct can include:

• Unwanted sexual advances
• Offensive remarks about someone's body
• Crude sexual comments or jokes
• Inappropriate touching
• Display of offensive images
• Sexual gestures

Employers can be held liable for sexual harassment by supervisors. They may also be liable for harassment by coworkers if they knew or should have known about it and failed to take appropriate corrective action.

What Should You Do If You Feel You Have Been Harassed?

If you believe you have experienced workplace sexual harassment, consider these steps to protect your rights:

1. Document everything, including dates, times, and any witnesses
2. Save any relevant emails, texts, or other communications
3. Report the harassment to your HR department or supervisor, following your company's internal policies to the extent that you can
4. Consider filing a complaint with the California Civil Rights Department and/or discussing your issue with an employment lawyer

Getting Help

Looking for legal help? Many employment lawyers offer free consultations and may take cases on a contingency basis, meaning you don't pay unless you win your case or obtain a settlement.