Know Your Rights About #MeToo and Arbitration Clauses

A recent Supreme Court decision has emboldened some companies to use arbitration clauses to quietly handle workplace sexual harassment claims. Federal lawmakers are considering a measure that would effectively nullify this decision. Some people, like former Fox News host Gretchen Carlson, have tried unorthodox legal maneuvers to circumvent the arbitration clause.

But in New York, there are no such issues, as the Empire State is well ahead of the curve. Part of the 2018-19 budget included amendments to Section 7515 of the Civil Practice Code. The new measure prohibits “any clause or provision in any contract which requires as a condition of the enforcement of the contract or obtaining remedies under the contract that the parties submit to mandatory arbitration to resolve any allegation or claim of an unlawful discriminatory practice of sexual harassment.”

In other words, if your employment contract has an arbitration clause, you can still make your sexual harassment claim a matter of public record.


Do I Have a Claim?

Over 80 percent of women have experienced harassing behavior at work. Such behavior often makes it difficult or impossible to function at one’s best at work. That inability obviously has severe consequences. Furthermore, many sexual harassment victims suffer physical problems. The weight of these issues forces many to quit.

Many of these women may have a legal sexual harassment claim. There are basically two types of cases:

  • Quid Pro Quo: Employers cannot tie favorable treatment to sexual favors. This prohibition is absolute. That includes things like “let’s discuss this promotion over dinner at my house.”
  • Hostile Environment: Occasional coarse jokes or inappropriate touches may not give rise to a legal claim for damages. Instead, the conduct must be so pervasive that it substantially interferes with job performance.

Other claims work a bit differently. Some women may have retaliation claims. For example, a women might complain about workplace harassment, and the boss might fire her shortly thereafter.

Liability may also attach in third-party claims. Many women who work in customer-centric jobs, like waitressing, must endure sexual harassment from certain customers. If she reports these incidents to her boss, and the boss does nothing or retaliates against the woman, the victim may have a legal claim for damages.


What Do I Need to Prove?

Most sexual harassment victims must first take their claims to an administrative agency, such as the Equal Employment Opportunity Commission. The EEOC has had a great deal of success in prosecuting these claims. But the agency is very understaffed, so its investigators usually only take cases which are “slam dunk” wins. So, do not be discouraged if the EEOC does not pursue your case. It does not mean you have a weak claim.

Once the case goes to court, victims must prove the elements of sexual harassment by a preponderance of the evidence (more likely than not). So, be prepared to tell your story to the jury. Corroborating witness statements go a long way as well. As for your damages, such as medical bills, documentation should be available for these things as well.

Once again, retaliation claims work a little differently. These victims need not prove sexual harassment. Instead, they must only prove that they complained about sexual harassment and the complaint triggered adverse action. Usually, a temporal relationship (e.g. complaint on Monday and demotion on Friday) is sufficient.

Even if their employment agreements include arbitration clauses, sexual harassment victims may initiate court cases. For a free consultation with an experienced sexual harassment lawyer in New York, contact Napoli Shkolnik PLLC. After-hours appointments are available to discuss your case.