Reports repeatedly reveal that sexual harassment is rampant in the restaurant industry. NPR reported that one 2021 study put the number of female restaurant employees who have encountered sexual harassment at more than 70%. Many of these female restaurant workers experienced harassment over an extended period. Many of them also signed arbitration clauses when they initially accepted their jobs. All of that means the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) is a potentially profoundly important law to women who need to seek justice for the misconduct they endured. To ensure you have the opportunity to hold your wrongdoers accountable in a court of law if you choose, it pays to have a skilled New York sexual harassment lawyer advocating for you.
President Biden signed the EFAA into law on March 3, 2022. The EFAA says that sexual harassment and sexual assault survivors are not bound by arbitration agreements they signed if their dispute arose or their claim accrued on or after March 3, 2023. What Congress did not do, however, was define those terms.
Several federal appeals courts have waded into this issue. The Second Circuit Court of Appeals here in New York and the St. Louis-based 8th Circuit Court of Appeals were among the latest to address the topic late last summer.
The 8th Circuit case related specifically to a woman in the restaurant industry. The employee, a Minnesota woman, allegedly began experiencing sexual harassment almost as soon as she started her job in May 2021. According to her lawsuit, her coworker sexually assaulted her in a workplace bathroom in November 2021.
The woman wisely sought legal counsel after that.
In February 2022, her attorney sent two letters to the employer indicating that they were “investigating potential claims.” The woman’s lawyer did not file a lawsuit until July 2022.
The employer argued that a “dispute” arose when the coworker assaulted her or, at the latest, by the time her lawyer sent the employer the pair of letters in February 2022 about investigating potential claims. The employee contended that the relevant date was July 2022, when her attorney filed the first civil court complaint -- which was after the EFAA had taken effect.
‘No Claim or Controversy’
The appeals court concluded that the EFAA applied and that the woman was not bound to undergo arbitration. The court noted that the woman “had not asserted any right, claim, or demand against” the employer, and the company had not lodged any disagreement the employee, meaning there was “no conflict or controversy between company and employee as of November 23, 2021, and no ‘dispute’ between the parties that could have been submitted to arbitration at that time.”
Additionally, because the attorney letters did not assert civil liability or demand monetary compensation, the letters did not create a “conflict or controversy,” either. The trigger date was the filing of the civil complaint, which occurred four months after the EFAA took effect.
A Hostile Work Environment, a Continuing Violation, and the EFAA
The Second Circuit has also looked into this topic recently, although outside the framework of the restaurant industry. The employer was a brokerage firm, and the employee was a Client Services Associate in the firm’s Garden City office. Allegedly, a supervisor spoke in graphic terms about his sex life with his wife (and other women), brought her into his office while viewing pornography, and touched her inappropriately, including once on the buttocks.
The associate sued in 2021 but remained with the firm. Over the ensuing months and years, the associate allegedly experienced multiple forms of retaliation, including reassignment to a new office (Melville), a new position (with less prestige and fewer responsibilities), and the revocation of her ability to access systems “that were essential to her previous role.” The firm also allegedly required her to work when other employees were allowed to leave, and it took months to provide her with basic supplies, such as shipping labels.
These assertions, according to the court, were enough to trigger the EFAA. The court ruled that a claim like the associate’s hostile work environment was a continuing violation and “reaccrues — is essentially reborn — with each successive act that is part of that continuing course” of misconduct. Because the hostile environment persisted throughout 2022 and beyond, the woman’s claim reaccrued after the EFAA became law, and therefore, the law applied.
Why It Matters
The difference between arbitration and litigation is often the difference between success and defeat. Plaintiffs win about 60% of the time in state court, and only about 20% of the time in arbitration. Thus, if you have endured sexual harassment, getting your case heard in court (rather than an arbitration setting) is often vital to getting justice.
Restaurant servers, hosts, chefs, bartenders, and other employees deserve workplaces where they can carry out their duties without fear of harassment. Although the industry is rife with harassment, workers should not give in and accept it as “just part of the job.” If you have experienced this form of workplace misconduct, the knowledgeable New York City sexual harassment attorneys at Phillips & Associates PLLC are here for you. We are committed to assisting employees in the hospital industry... and all areas of work. To learn more about the options available to you and how we can help, please contact us online or call (866) 229-9441 to schedule a complimentary and confidential consultation today.