ENDING FORCED ARBITRATION OF SEXUAL ASSAULT AND SEXUAL HARASSMENT ACT
Doe v. Second Street Corporation, 105 Cal. App. 5th 552
Kader v. Southern California Medical Center, 99 Cal. App. 5th 214
Liu v. Miniso Depot CA, Inc., 105 Cal. App. 5th 791
Doe v. Second Street Corporation, 105 Cal. App. 5th 552
The plaintiff filed suit against defendants, operators of a hotel, alleging a variety of sexual discrimination claims plus wage and hour allegations. She worked as a server and alleged that she was sexually assaulted by a fellow server, in October 2019, which was prior to the enactment of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA). She claimed that the defendants ignored her requests that she not be assigned to the same shifts as her alleged attacker, made her repeat the details of her attack to a supervisor months after the assault, and accused her of having a consensual sexual relationship with the attacker. She resigned in May 2022, after EFAA was enacted, and termed her departure as a constructive discharge. The trial court denied defendants’ motion to compel arbitration on the ground that the EFAA applied because 1) the discharge occurred after EFAA’s enactment and 2) it applied to the entire case and not just to the sexual harassment claims. The defendants appealed and the Court of Appeal affirmed.
The EFAA applies where a plaintiff alleges a course of sexually harassing conduct that occurs both before and after the EFAA's enactment. Where sexual discrimination or harassment claims involve repeated conduct, the “unlawful employment practice” occurs over a series of days or perhaps years. Thus, a hostile work environment claim will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the limitations period.
The hotel then contended that even if the arbitration provision was unenforceable as to the plaintiff’s sexual harassment claims, the plaintiff’s other claims should have been ordered to arbitration. The court disagreed. The EFAA facially applies to “a case which … relates to the sexual assault dispute or the sexual harassment dispute.” 9 U.S.C. § 402(a). By its plain language, then, the statute applied to the entire case, not merely to the sexual assault or sexual harassment claims alleged as a part of the case. The statute does not require that the pendant claims arise out of the sexual assault or sexual harassment dispute. It is enough that the case relates to the sexual assault or sexual harassment claims.
Kader v. Southern California Medical Center, 99 Cal. App. 5th 214
In May 2022, Kader filed a complaint in Superior Court alleging that he had been sexually harassed by his supervisor, beginning in November 2018. The defendant filed a motion to compel arbitration based on an arbitration agreement that Kader signed in June 2019. The trial court denied the motion, citing the EFAA, which became effective in March 2022. The defendant appealed, arguing that the Act did not apply because the arbitration agreement predated the effective date of the Act and because it was not a pre-dispute agreement, given that the alleged acts occurred before the agreement was signed.
The Court of Appeal affirmed. The Act does not define a “dispute” or state when a dispute has “arisen.” It looked to general and legal dictionaries for a term's ordinary meaning. Black's Law Dictionary defines a dispute as a “conflict or controversy, esp. one that has given rise to a particular lawsuit.”
The court concluded that the date that a dispute has arisen for purposes of the Act is a factspecific inquiry in each case, but a dispute does not arise solely from the alleged sexual conduct. A dispute arises when one party asserts a right, claim, or demand, and the other side expresses disagreement or takes an adversarial posture. In other words, a dispute cannot arise until both sides have expressed their disagreement, either through words or actions. Until there is a conflict or disagreement, there is nothing to resolve in litigation
The definitions within the Act also make clear that a dispute requires more than an injury. The Act defines a “sexual assault dispute” as “a dispute involving a nonconsensual act or sexual conduct,” and it defines “sexual harassment dispute”’ as “a dispute relating to conduct that is alleged to constitute sexual harassment”’ If the underlying conduct alone—the sexual assault or harassment—automatically gave rise to a dispute, then the legislature's use of the word “dispute” within these two definitions would be superfluous. A “sexual assault dispute” would merely mean “a nonconsensual act or sexual conduct”’ And a “sexual harassment dispute” would mean “conduct that is alleged to constitute sexual harassment”. This cannot be so. A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.
Liu v. Miniso Depot CA, Inc., 105 Cal. App. 5th 791
Plaintiff sued Miniso, her former employer, asserting two causes of action alleging sexual harassment and several other causes of action asserting employment related causes of action which did not involve sexual harassment. Miniso’s motion to compel arbitration was denied because Section 402(a) of the EFAA barred arbitration of all of the claims. Miniso appealed, arguing that the non-sexual harassment claims were arbitrable.
The Court of Appeal affirmed. One cannot reasonably interpret section 402(a) as invalidating an arbitration agreement only with respect to certain claims within a case. The term Congress chose—“case”—is different from the term “claim.” If Congress had intended the result Miniso seeks, it would have used the term “claim” instead of “case” or alternatively stated that the arbitration provision would be unenforceable “only to that portion of the case related to the sexual harassment dispute.” Congress did not use such language, and the court lacked the power to rewrite a statute to make it conform to a presumed intention which is not expressed in the statute itself.