Employers prefer arbitration over civil trials for many reasons. Arbitration can often be cheaper than litigating a civil lawsuit. Arbitration is also a setting where, historically, employers have experienced more favorable outcomes compared to civil court, whether that is a smaller award to the employee or a decision outright in favor of the defense. Fortunately for employees, recent changes in federal law have armed them with enhanced tools for avoiding arbitration. In 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. This tool enables many workers to avoid arbitration and instead seek justice in civil court. Knowing how to utilize the EFAA to avoid arbitration requires detailed legal knowledge, which is why it is well worth your while to consult an experienced New York sexual harassment lawyer about your case.
A recent employment case from the federal district court in Manhattan provides some helpful knowledge about just how far the EFAA’s protections extend.
The employee, N.O., a Harvard-educated Asian-American woman, was a finance professional. In 2019, at age 50, she began a new position at a major multinational tax and professional services firm. According to the woman’s lawsuit, her colleagues and supervisors at the firm “provided little support, deprived her of opportunities, stole credit for work she generated, and treated her with hostility.” They allegedly engaged in these forms of hostility because of N.O.’s age, gender, and race.
The employee faced a difficulty common to many working people: a mandatory arbitration clause within her employment agreement. After N.O. filed her discrimination case under the New York City Human Rights Law, the employer fought back by raising the arbitration clause and asking the trial court to order the two sides to submit the dispute to mandatory arbitration.
One crucial thing N.O.’s case illustrates about the EFAA is that your New York civil lawsuit does not have to have expressly alleged a “cause of action” for sexual harassment for the EFAA to apply and wipe out any pre-dispute arbitration agreement you signed. To invoke the EFAA and escape arbitration, your case needs only to have alleged conduct that constitutes sexual harassment. If the totality of your allegations plausibly makes out an instance of sexual harassment, then the EFAA applies, and any pre-dispute arbitration agreement you signed is unenforceable.
Harassment Doesn’t Need to Be ‘Lewd’ or ‘Romantic’
In ruling for N.O., the court made another highly noteworthy point: that the verbal or physical conduct at issue does not need to be “lewd,” romantic, or even “sexual in nature.” The court instead said that, to constitute sexual harassment “under the NYCHRL,” conduct only needs to be “unwelcome verbal or physical behavior based on a person’s gender, regardless of whether that behavior is lewd or sexual in nature.” The court then offered a hypothetical example, explaining that “if a plaintiff alleges that they were harassed by being shouted at or shoved and that the harassment or assault was motivated by their gender, the Court’s analysis need not turn on whether the words shouted or the contact made was sexual in nature.”
N.O.’s case laid out multiple instances where coworkers and supervisors made unwanted verbal statements about N.O.’s gender (and women in general). These instances, according to the court, were enough to constitute sexual harassment and trigger the EFAA, allowing the employee to avoid arbitration.
Sexual harassment can take many forms in New York. To qualify as such under our laws, wrongful actions need not look like the sort of misconduct one might see in a movie. This knowledge is vital if you are asking a judge to invalidate an arbitration agreement you signed. Wherever you are in the process and whatever the specifics of your case, you deserve a skillful legal advocate. The knowledgeable New York sexual harassment attorneys at Phillips & Associates are here to be the powerful team you need to get justice. Contact us online or at (833) 529-3476 to set up a free and confidential consultation.