Lauren Teukolsky was quoted in an April 24 Bloomberg Law article on a string of appellate court rulings interpreting a 2022 law that exempts sexual harassment and assault claims from arbitration. President Biden signed the Ending Forced Arbitration Act (EFAA) into law on March 3, 2022, in response to the #MeToo movement. The law permits workers alleging a sexual assault or harassment dispute to keep their case in court, voiding any mandatory arbitration agreements. A growing number of employers have required workers to sign forced arbitration agreements as a condition of employment, pushing them into a discriminatory one-sided process.
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Employers have fought to limit the EFAA’s applicability and scope, but courts have largely issued pro-employee rulings that keep a broad swath of claims out of arbitration.

For example, the Sixth Circuit recently ruled that workers may avoid arbitration for sexual misconduct occurring before EFAA’s effective date of March 3, 2022 if they filed a lawsuit after that date. This ruling follows pro-employee decisions in the Second, Third, and Eighth Circuits.

Bloomberg Law quoted Ms. Teukolsky saying, “Courts are defining the terms of the Act in an employee-friendly way to keep sexual harassment and assault claims out of arbitration.”

Ms. Teukolsky has represented workers for over two decades, including sexual assault and harassment cases. Her commentary on the latest developments in employment law is regularly featured by major publications such as Daily Journal, Law360, Law.com, and the Los Angeles Times.

These appellate decisions represent victories for workers who have suffered from sexual assault and harassment. To read the Bloomberg Law article, click here. 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.

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.
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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.

Lauren Teukolsky will speak at the Sixth Annual CLE Conference on Gender Discrimination and Harassment Law at the UC Berkeley School of Law. The conference is on Thursday, January 23, 2025, and Friday, January 24, 2025. Berkeley’s Center on Comparative Equality and Anti-Discrimination Law is hosting  the conference, which will explore new developments in gender discrimination and harassment law in California and other jurisdictions. Ms. Teukolsky is scheduled to speak on forced arbitration of employment claims, alongside David Lowe, a Partner at Rudy Exelrod Zieff & Lowe, and Steve Tindall, a Partner at Gibbs Law Group. Topics covered will include a new federal law excluding sexual harassment and sexual assault claims from arbitration (the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021”), and recent cases that interpret its scope. 

​Ms. Teukolsky has worked to protect employees’ rights for over two decades and regularly speaks at conferences on employment law. Last September, Ms. Teukolsky was selected to moderate a session at CELA’s (California Employment Lawyer Association) 36th Annual Employment Law Conference on individual wage-and-hour arbitrations. Her commentary on the latest developments in employment law is regularly featured by major publications such as Bloomberg Law, Law360, Law.com, and the Los Angeles Times.

Ms. Teukolsky’s panel takes place on Friday, January 24, 2025, at 1:30 PM PT at The International House in Berkeley. To register for the conference, click here. If you believe you’ve been treated unlawfully in the workplace and want to get in touch with our office, click here.

A slate of new protections for workers are now on Gavin Newsom’s desk as the 2023-2024 California legislative session officially ends. The dedicated advocacy of California Employment Lawyers Association has resulted in several promising measures one signature away from bringing new protections to California’s workers.
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Expanding Protections for Household Domestic Services
SB-1350 expands the California Occupational Safety and Health Act’s definition of “employment” to include household domestic services. The amended definition permits California to enforce and administer all occupational health and safety laws to protect employees performing household services. Previously, domestic workers were explicitly exempted from traditional worker protections.
These protections are critical for the domestic service industry. In the California, domestic workers are largely migrants and women of color.  The state contains an estimated 350,000 workers for 2 million households. These workers provide care to the most vulnerable populations of immunocompromised and senior individuals. They suffer the consequences of poor labor protection. A majority of surveyed household domestic workers (84%) have reported preventable musculoskeletal injuries and chronic pain, and over half of the surveyed workers (55%) reported working through their injuries due to fears about job security.

Intersectionality in Anti-Discrimination Protections
SB-1137 expands civil right protections in public schooling, public accommodations, housing, and employment. While the law currently affords protections against discrimination based on a protected trait, this bill expands those protections for any combination of two or more protected traits.
Senator Smallwood-Cuevas, the bill sponsor, recognized that individuals with intersectional identities could face discrimination that does not neatly fall into any single  category of discrimination. The bill is a common-sense reform that addresses this “intersectional discrimination” against Californians with overlapping identities. Advocates argue that the recognition of intersectional discrimination has judicial precedent. The EEOC and the Ninth Circuit have already recognized that protected characteristics can overlap creating an entirely unique form of discrimination.

Enhancing Employment Protections for Survivors of Violence
AB-2499 provides greater employment protections for survivors of violence.  Existing law requires an employer to provide reasonable accommodations for a survivor of violence or crime. Pre-existing protections forbid employers from discharging or discriminating against employees because of their status as a survivor of crime, abuse, or for taking time off to serve on a jury or as a witness in a judicial proceeding.
Amending existing law, this bill revises the definition of an unlawful employment practice under the California Fair Employment and Housing Act to include discrimination or retaliation against an employee for taking protected time off. California’s Civil Rights Department would have enforcement authority over violations of jury, court, and victim time off provisions. This bill addresses the growing impact of crime on employees. One in six victims of violent crime report job loss or demotion and 53% of domestic violence survivors report job loss due to their circumstances.

For more on the latest developments in employment law, visit our blog here. If you believe your employer may have violated workplace laws, click here to get in touch with our office

On December 7th, President Biden signed the Speak Out Act into law. The law makes nondisclosure agreements (NDAs) unenforceable if signed before a dispute involving sexual assault or sexual harassment arises. It comes less than a year after the passage of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, a law that also improved workplace protections for victims of sexual harassment and assault.

The Speak Out Act represents a big victory for #MeToo movement and workers’ advocates. NDAs are frequently used to silence workers and keep accusations of sexual misconduct out of the public eye. They also prevent many workers from explaining job departures and employment gaps caused by sexual misconduct to prospective employers. According to a paper authored by Professors at Syracuse University and the University of Maryland, approximately 26 % of U.S. employees are covered by NDAs.

It is important to remember that the bill does not apply to other kinds of workplace disputes such as age or race discrimination. It also does not apply to NDAs signed after a dispute arises.
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If you have been the target of sexual misconduct in the workplace, click here to get in touch with Teukolsky Law. 

​Last week, the United States Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, signaling a huge victory for victims of sexual assault and harassment across the country. The law prevents employers from using forced arbitration clauses to protect themselves from lawsuits alleging sexual assault and harassment. The bill invalidates forced arbitration clauses in “any dispute or claim that arises or accrues” after the date it is signed into law.  This appears to mean that it applies to existing agreements that an employee has already signed, but does not revive sexual assault or harassment cases that have already been arbitrated.

Employers often include forced arbitration clauses in their employees’ employment contracts to ensure that employees’ claims of sexual assault or harassment are resolved through private arbitration, rather than normal court. Many employers do this because the employees tend to fare worse in private arbitration than they do in court. According to a paper published by the Economic Policy Institute, employees in private arbitration win only about a fifth of the time (21.4 percent), whereas employees in federal court win over one-third (36.4 percent) of the time. Employees also tend to be awarded less in damages in mandatory arbitration than in federal courts.

The new bill, H.R. 4445, has not been signed into law yet, but has now been passed by both chambers of Congress with strong bipartisan support. President Biden has indicated support for the bill in the past and is expected to sign it into law soon.
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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.

In recent years, California lawmakers have taken on sexual harassment and assault with a series of changes to state law.  In the wake of revelations about how institutions and companies keep sexual misconduct and abuse under wraps—from the Catholic Church sex abuse scandal to Harvey Weinstein—the California legislature has largely taken confidentiality agreements surrounding sexual misconduct off the negotiating table.  The legal developments aim to shed light on sexual harassment and violence by preserving the ability of victims to speak about their experiences, despite a settlement.  Here is what you need to know: 

1) California law prohibits confidentiality in settlement agreements in civil cases where the underlying conduct could be criminally charged as a felony sex offense.  The prohibition applies not only to cases related to workplace sexual assault, but to all civil cases.  Sexual conduct that could prosecuted as a felony includes (among other acts): rape, and sexual assault where the perpetrator used violence, restrained the victim, or fraudulently deceived the victim into believing the touching was for a professional purpose.  
Where the conduct you allege rises to the level of felony sexual assault, your attorney could be subject to professional discipline by the California State Bar for demanding confidentiality or advising you to agree to confidentiality in a settlement agreement.  

2) California law limits provisions in settlement agreements that prevent disclosure of allegations related to sexual harassment, sexual assault, sex-based discrimination, and retaliation.  If you have filed a complaint in court or with an administrative agency (such as California's Department of Fair Employment and Housing), the company cannot require you, as a condition of settling your claims, to stay silent about the facts described in your complaint.  

An exception may be made where the survivor of sexual harassment wishes to maintain the confidentiality of their identity.  At the survivor’s request, the settlement agreement can shield the survivor’s identity and facts that could lead to discovery of her identity. It is also permissible for settlement agreements to require the parties’ confidentiality about the dollar figure of the settlement.  

If you have experienced sexual assault or sexual harassment or sexual assault in the workplace, contact us today for a free consultation.