The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) is still a relatively new law and the courts are still assessing the statute’s reach. One thing that is already clear is the relationship between the civil claims you advance in a lawsuit and your ability to invoke the EFAA to block your employer from enforcing an arbitration clause. As a recent federal sexual harassment case from here in New York City teaches, even if you do not advance a claim specifically titled “Sexual Harassment,” that alone does not automatically prevent you from using the EFAA to avoid arbitration. If you have questions about the sexual harassment you endured at work or the arbitration provision you signed as part of your employment contract, the best way to get the answers you need is to speak to an experienced New York sexual harassment lawyer.
The employee in the federal case, A.R., worked as an account executive with a technology company. According to the woman’s lawsuit, she endured a wide array of sexually harassing comments and unwanted physical contact during her decade with the company.
Her male colleagues allegedly made numerous demeaning and sexist statements like suggesting (after her divorce) that she have sex with her ex-husband’s friends, telling her that she should engage in sexual activity because if she did not “use it… it will shrivel up,” and making other inappropriate sexual recommendations using vulgar, explicit slang.
Additionally, the executive alleged a job-related sexual assault. After leaving an off-site reception, the executive’s male coworkers allegedly coerced a male customer into A.R.’s taxi, who grabbed the executive’s breast as she screamed, “He’s grabbing me!” The male colleagues videoed the incident, repeatedly replaying it at work for laughs, according to the lawsuit.
After the executive sued, the employer attempted to move the case from federal court to an arbitration setting. The employer cited the employment contract it signed with the executive, which included a mandatory arbitration clause. The executive asserted that the EFAA rendered the provision unenforceable. The employer countered that the EFAA did not apply because the executive did not include a sexual harassment claim in her complaint.
The Claims' Names Do Not Determine EFAA Applicability
The District Court sided with the executive, pointing out that the causes of action a worker names in her lawsuit do not automatically determine whether or not a case “relates to sexual harassment.” As the court explained, the “EFAA does not…require a plaintiff to ‘style’ her claims as a sexual harassment complaint; rather, it is sufficient that – looking at the underlying substance of the allegations – the plaintiff states a claim for sexual harassment that is plausible on its face.”
The EFAA specifically defines a “sexual harassment dispute” as a “dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” Even though the executive only named claims for discrimination and retaliation under the New York State Human Rights Law and discrimination and retaliation under the New York City Human Rights Law, the substance of the allegations in her complaint still “related to” a sexual harassment dispute.
The executive asserted that she encountered comments, jokes, and questions about her sex life and her private relationships. She also alleged enduring unwanted sexual contact that her coworkers videoed and viewed at work for their amusement, further sexually humiliating her.
'Plausible' Allegations of Sexual Harassment
These things were enough to add up to a plausible case of sexual harassment. Federal law requires establishing three things in a sexual harassment claim:
- the alleged conduct is “objectively severe or pervasive” such that it “creates an environment that a reasonable person would find hostile or abusive”;
- the plaintiff “subjectively perceives” the environment as “hostile and abusive”; and
- such an environment is created because of the plaintiff’s sex.
Courts measure the first piece -- objective hostility -- under four parameters:
- "the frequency of the discriminatory conduct;
- its severity;
- whether it is physically threatening and humiliating, or a mere offensive utterance; and
- whether it unreasonably interferes with an employee’s work performance."
The executive’s allegations depicted frequent, severe, and physically threatening harassment that interfered with her work. The complaint also sufficiently declared that A.R. subjectively perceived the conduct as harassing and that the conduct occurred because of A.R.’s sex.
With those things in her complaint, the executive pled a “sexual harassment dispute” sufficient to trigger the EFAA and foil the employer’s attempt to reroute the dispute to arbitration, regardless of how the executive titled the causes of action she listed in her complaint.
Sexual harassment can be the result of inappropriate verbal or physical conduct. It often causes the victim to experience emotional and physical harm. If you or a loved one has experienced this sort of misconduct, the knowledgeable New York sexual harassment attorneys at Phillips & Associates are here to help. Our team possesses a deep understanding of federal, state, and city laws regarding sexual harassment. We also are keenly aware of how personal and sensitive each worker’s sexual harassment case is. Our attorneys offer each client strong attention to detail and the utmost diligence to ensure every client gets justice. To learn more, contact us online or at (833) 529-3476 to set up a free and confidential consultation.