Takeaway: Employers should not assume an arbitration agreement will keep workplace disputes out of court simply because a complaint includes multiple claims. When an employee plausibly alleges sexual harassment under California law, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) may remove the entire case from arbitration. HR professionals should treat complaints involving harassment tied to sexual orientation with the same urgency as any other sexual harassment allegation, regardless of how the conduct is labeled.
The California Court of Appeal held that harassment based on an employee’s sexual orientation qualifies as sexual harassment under the California Fair Employment and Housing Act (FEHA), allowing the employee’s lawsuit to proceed in court despite a mandatory arbitration agreement.
The case centered on the interaction between FEHA and the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. Under the EFAA, employees alleging conduct that constitutes sexual harassment under federal, state, or tribal law may elect to pursue their claims in court rather than arbitration.
The plaintiff, a patient service representative, alleged that a coworker repeatedly criticized his sexual orientation, telling him he “shouldn’t be gay” because it was “sinning.” According to the complaint, the coworker also threatened him, repeatedly pulled his hair, and engaged in unwanted physical contact over several months. The...
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