Workers who have undergone sexual harassment in the last several years should be aware that they have powerful legal tools on their side now. One is the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), which allows sexual assault or harassment victims to litigate their cases in court, even if they signed an arbitration agreement with their employers. As a recent New York sexual harassment case illustrates, this holds even if the employee’s case is a multifaceted action with claims wholly unrelated to sexual harassment. As long as you have a viable sexual harassment claim -- under federal, state, or local law -- you have enough to invoke the EFAA. If you have specific questions about your particular circumstances, consult with an experienced New York sexual harassment lawyer to get the advice you need.
C.K., the plaintiff in that recent New York case, was a law clerk for a law firm headquartered in Midtown Manhattan. When she signed on to join the firm, she signed several documents, including an agreement in which she and the firm promised to arbitrate any disputes that arose regarding her employment with the firm.
Ultimately, disputes did arise. After leaving the firm, the law clerk sued for gender discrimination, disability discrimination, and sexual harassment. However, due to a federal law passed in 2022, the law clerk was entitled to forgo arbitration of any of her claims and to litigate all matters in a federal district court.
The EFAA specifically gives alleged victims of sexual harassment the option to abide by the arbitration agreements they signed or to avoid them entirely. That is because the statute expressly says that it applies “to a case.” That language gives the employee the right to elect to litigate rather than arbitrate her claims, even if some of the claims had nothing to do with sexual harassment or sexual assault, so long as some of them did.
This law was the key to C.K. avoiding arbitration in her case. While some of what she alleged -- such as a failure to provide a reasonable accommodation for her disabilities -- had nothing to do with sexual harassment, part of her case plainly did relate to harassment.
Unwanted Speculation and ‘T.M.I.’
Allegedly, the law clerk endured an array of “unwanted sexual comments,” including ones that speculated about her “sex life and romantic relationships.” According to the law clerk’s suit, one of the partners compared C.K. favorably to the fictional character Daenerys Targaryen. C.K. was “better than Daenerys,” the partner allegedly opined, because, unlike the fictional Daenerys, C.K. “hadn’t slept her way to the top.”
Another partner allegedly questioned the law clerk about the particulars of her sex life, asking her if she ever combined drugs and sex. The partner went on to volunteer information that he and his wife did so and that it made “everything feel better... I highly recommend it.”
This range of comments was enough for the law clerk to have a viable sexual harassment claim. In addition to asserting a federal Title VII claim (which requires the employee to present proof of severe or pervasive harassment), C.K. also advanced a claim under the New York City Human Rights Law. The NYCHRL defines sexual harassment much more broadly than Title VII. Under city law, harassment does not need to be severe or pervasive to be actionable.
What the law clerk alleged, even if it did not satisfy Title VII, definitely qualified as a viable sexual harassment claim under the NYCHRL, and that legitimate claim was enough to trigger the EFAA and open the door for C.K. to elect to litigate her case rather than go through arbitration.
Holding those responsible for the sexual harassment you endured accountable for their actions (or inaction) is a multifaceted process. Charting the best path for success may involve many things, including invalidating an arbitration agreement so that you can litigate and have your day in court. As you proceed, you need a skillful legal partner. The team of knowledgeable New York City sexual harassment attorneys at Phillips & Associates PLLC is here to be that partner for you. Whether your case is federal or state, and whether it involves solely sexual harassment or a range of legal violations, we have the experience to assist you effectively. To learn more, please get in touch with us online or call (866) 229-9441 to schedule a complimentary and confidential consultation today.