In 2024, California’s appeals courts handed three victories to workers relying on the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) to keep their sexual harassment and assault cases out of arbitration. President Biden signed the law on March 3, 2022. It permits workers alleging a sexual assault or harassment claim to keep their case in court, voiding any mandatory arbitration agreements. Employers have increasingly required employees to sign arbitration agreements at the outset of employment, forcing those workers into a discriminatory one-sided process.
Arbitration is plagued with unresolved problems. Arbitrators are primarily white and male, far less diverse than juries in major metropolitan areas. The two largest employment arbitration organizations in the U.S. have reported data showing that 88% of their arbitrators are white and 77% are male. Further, arbitration is a largely secretive process with unclear rules and little oversight. This effectively silences victims of sexual assault and harassment. Forced arbitration agreements are widespread and currently cover 56% of all non-union private sector employees. A 2018 study done by the Economic Policy Institute found that mandatory arbitration is common in low-wage workplaces and in industries disproportionately comprised of women and African Americans. The EFAA provides much-needed relief because it makes arbitration agreements in sexual harassment cases unenforceable, permitting workers to keep their case in court. Predictability, since EFAA’s passage, employers have fought vigorously to limit the law’s applicability and scope. Fortunately, they have had limited success in California. In two recent decisions, Doe v. Second Street Corp., 105 Cal. App. 5th 552 (2024), and Liu v. Miniso, 105 Cal. App. 5th 791 (2024), the California Court of Appeal broadly interpreted EFAA’s arbitration ban, holding that the EFAA exempts a plaintiff’s entire case from arbitration so long as the employee asserts at least one claim of sexual harassment or assault. In both cases, the court rejected employers’ argument that only sexual harassment or assault claims should stay in court, but unrelated claims should be arbitrated. However, the EFAA plainly states that arbitration agreements are unenforceable with respect to a plaintiff’s “case,” not just a “claim.” If Congress intended for the law to exempt only specific claims, it would have crafted the law to state as much. On November 15, 2024, the employer in the Liu case filed a petition for review with the California Supreme Court, but it is unclear whether the state’s highest court will take up the appeal or wait for more appellate courts to weigh in. In Kader v. S. California Med. Ctr., Inc., 99 Cal. App. 5th 214 (2024), the California Court of Appeal similarly handed a win to an employee who relied on EFAA to keep his case out of arbitration. The plaintiff signed an arbitration agreement while he was experiencing harassment, but before he filed a lawsuit. The employer argued that the EFAA applies only to arbitration agreements signed before the underlying sexual harassment occurs, also known as “predispute” arbitration agreements. The court rejected the employer’s argument, holding instead that a “dispute” arises for purposes of EFAA only when the parties take adversarial positions on an asserted right or claim. In this case, the “dispute” arose only when the plaintiff filed a harassment charge with the State’s civil rights agency, rendering the arbitration agreement he signed before then unenforceable. These three decisions represent victories for workers who have suffered from sexual assault and harassment who want to avail themselves of California’s robust public court system. If you believe you have faced sexual assault or harassment at work, or have questions about arbitration, contact Teukolsky Law today for a free consultation.
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The Daily Journal published a front page article today discussing non-disclosure agreements that prevent African-American employees who have settled their claims out of court from speaking about their workplace experiences of racism. Lauren Teukolsky is quoted about the parallels between the Black Lives Matter movement and the #metoo movement, and her prediction that the political pressure generated by BLM may eventually result in the California Legislature banning non-disclosure agreements in all harassment and discrimination cases (they are currently banned only in sexual harassment cases).
The Daily Journal article states: “The two bills [one of which prohibits non-disclosure agreements in sex harassment settlements] were among several that came out of the #MeToo movement, which ‘created intense political pressure for women who had previously been bound by confidentiality agreements to come forward and be able to tell their stories without fear of retribution,' said Lauren Teukolsky, who represents employees at Teukolsky Law APC. 'There is absolutely a parallel that can be drawn between #meToo and the Black Lives Matter movement,' she said. 'As the Black Lives Matter movement grows and expands, I do think there is going to be a push in the Legislature to end non-disclosure agreements potentially in all discrimination cases and in all harassment cases. There’s just no reason why the ban on NDAs should be limited to sexual harassment.'" If you have experienced harassment or discrimination in the workplace, contact us today for a free consultation. ![]() Earlier today, Teukolsky Law filed a new sexual harassment lawsuit on behalf of Joey Dalla Betta (pronouns: they/them) against Flaunt Magazine, its CEO Luis Barajas and Editor-in-Chief Matthew Bedard. Barajas founded Los Angeles-based Flaunt in 1998 after a 10-year stint running Detour, a well-known fashion and entertainment magazine. Flaunt covers have featured many high-profile actors and musicians such as Beyoncé, Brad Pitt and Kanye West. Barajas, who is in his mid-50s, hired Dalla Betta as his executive assistant in July 2018. Dalla Betta alleges that Barajas and Bedard ran the magazine based on a culture of fear and intimidation, where advancement was based on a willingness to submit to repeated sexual advances and endure a non-stop barrage of sexual banter. Young aspiring writers like Dalla Betta were scared to complain or quit because jobs in the magazine industry are so rare. (Joey Dalla Betta, pictured left. Photo credit: Lucy-Bleu Knight.) VICE News ran a piece covering the filing of the lawsuit. As described in the piece, "At first, Dalla Betta thought that the expectations and behavior at Flaunt were normal in the journalism industry. They poured themselves into Flaunt, often working through weekends. At times, it felt like even the boundaries between Dalla Betta and the magazine itself had dissolved, because they felt the successes and failures of the magazine so intimately." If you have experienced sexual harassment, contact Teukolsky Law today for a free consultation. The Los Angeles Times has quoted Teukolsky Law founder and owner Lauren Teukolsky discussing the firm's latest sexual harassment lawsuit against Marriott Hotel. The case highlights an employer's duty to protect employees from customers who sexually harass them.
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AuthorLauren Teukolsky is the founder and owner of Teukolsky Law, A Professional Corporation. Archives
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