The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act is a powerful tool for workers who have encountered workplace harassment or sexual assault. The language of the law recognizes that sexual harassment and sexual assault often do not occur in a vacuum and, for that reason, allows workers to choose to litigate all of the claims in a sexual assault or sexual harassment case, even if some of the claims in the lawsuit are unrelated to sexual harassment or sexual assault. If you have endured this kind of misconduct at work, talk to a knowledgeable New York sexual harassment lawyer about your options and what the legal system can do for you.
A cafe worker’s recent harassment lawsuit is a prime example of just how broad the EFAA is.
The employee, who worked at a New York City eatery “bussing” tables, signed an employment contract when he began his job. The contract included, as most do, an arbitration clause. The clause, like many, was sweeping. Specifically, it stated that, “to the maximum extent of the law, Employee agrees that any disputes arising out of or in any way relating to Employee’s employment or termination from employment... shall be resolved exclusively by final and binding arbitration.”
Two months after his employment ended, the busser filed suit against his employer. The lawsuit proceeded on two very different bases. On the one hand, the busser (on behalf of himself and all similarly situated employees at the cafe) alleged that the employer failed to pay the required minimum wage and overtime compensation, in violation of federal and state wage-and-hour laws.
On the other hand, he also asserted (solely on his own behalf) claims for a hostile work environment and sexual orientation discrimination in violation of the New York State Human Rights Law and the New York City Human Rights Law. The busser’s case alleged that his coworkers and one manager, Marko, targeted him for harassment and abuse because he was gay.
This alleged abuse included the coworkers targeting him with Spanish-language homophobic slurs, and the manager getting close to him and touching his legs, grabbing his wrist, and his waist. The manager also allegedly asked the busser about his sex life after he returned from vacation. When the busser complained to other managerial employees, they did not rectify the problem but told him he was being “too dramatic” and should “get back to work.”
After the busser sued, the employer invoked the arbitration clause and sought to force the busser to arbitrate all of his claims. The court, however, upon viewing the detailed allegations in the busser’s complaint and the language of the EFAA, concluded that the busser was entitled to avoid arbitration and to continue litigating all of his claims in court.
A Right to Litigate the Whole Case, Not Just the Harassment Claim
As the court explained, the EFAA did not merely invalidate arbitration clauses insofar as they relate to claims of sexual harassment or sexual assault, but rather all claims raised in cases that include claims of sexual harassment or sexual assault. The statute contained language that said no arbitration clause “shall be valid or enforceable with respect to a case which... relates to the sexual assault dispute or the sexual harassment dispute.”
The “with respect to a case” language is crucial, according to the courts. As the district court previously noted in 2023, the EFAA “keys the scope of the invalidation of the arbitration clause to the entire ‘case’” and does not limit that scope solely to the sexual assault/sexual harassment claims.
In the busser’s case, he laid out a viable claim that he endured same-sex sexual harassment because he was gay. Because he had a viable claim, he was entitled to litigate, not arbitrate, all the claims he advanced in his case, including the NYCHRL and NYSHRL claims and the wage-and-hour law claims.
Today, victims of workplace sexual harassment and sexual assault have more legal tools at their disposal than ever before. If you have questions about how to proceed in your sexual harassment or sexual assault case, get in touch with the experienced New York City sexual harassment attorneys at Phillips & Associates PLLC. Our skilled team has assisted countless clients in getting justice for the sexual harassment they endured. To find out more about how we can help you, contact us online or at (866) 229-9441 to set up a free and confidential consultation today.