Can Sexual Orientation Harassment Victims Be Required To Arbitrate Their Case?

Having represented employment discrimination victims for more than twenty years, our sexual orientation discrimination lawyers in Marion County, Florida know that many employers require employees to sign arbitration agreements as a condition of employment. When employees sign an arbitration agreement, they are prohibited from filing their legal claims in the court system. Instead, employees must submit their legal claims to arbitration where an arbitrator instead of a jury decides their case. Succinctly stated, employers require employees to sign arbitration agreements because arbitration is a forum that overwhelmingly favors employers. In the arbitration forum, employees routinely encounter arbitration procedures that impede, if not undermine, their ability to fairly and properly adjudicate their legal claims, including substantial restrictions on their ability to depose relevant witnesses, obtain relevant information from employers, and compel employers to disclose relevant information. Arbitration is also significantly more expensive than litigating a case in the court system.

In this article, our sexual orientation discrimination attorneys in Marion County, Florida explain how the decision in Mera v. SA Hospitality Group, LLC, Case No. 23-cv-03492 (S.D. N.Y. June 3, 2023) illustrates that employees subjected to sexual orientation harassment are no longer required to submit their claims to arbitration even when they have signed an arbitration agreement.

Ending Arbitration In Sexual Harassment Cases

In 2021, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA). When employees have signed an arbitration agreement, as the court in Steinberg v. Capgemini America, Inc., 2022 WL 3371323 (E.D. Pa. Aug. 16, 2022) observed, “[t]his significant act rightly pulls back on the long-held presumption towards arbitration where sexual harassment is concerned.” The EFAA provides that “at the election of the person alleging conduct constituting a sexual harassment dispute . . . no pre-dispute arbitration agreement . . . shall be valid or enforceable with respect to a case which is filed under Federal [or] State law and relates to the . . . sexual harassment dispute.” “In doing so,” the Steinberg court explained, “the EFAA unequivocally ends the era of employers being able to unilaterally compel arbitration in sexual harassment cases.” Under the EFAA, therefore, employees claiming that they were sexually harassed in violation of federal or Florida law are not required to submit their claims to arbitration even when they have signed an arbitration agreement. However, the EFAA only applies to any sexual harassment claim that arises after the date of the enactment of the EFAA, and the EFAA was enacted on March 3, 2022.

Protection From Sexual Orientation Harassment

Title VII of the Civil Rights Act of 1964 (Title VII) protects employees from discrimination on the basis of sex. Under long-standing law, sexual harassment is a form of sex discrimination prohibited by Title VII. In Bostock v. Clayton County, 140 S.Ct. 1731 (2020), the U.S. Supreme Court ruled that discrimination on the basis of sexual orientation or transgender status is a form of sex discrimination forbidden by Title VII. Because the Bostock Court determined that discrimination based on sexual orientation or transgender status is a form of unlawful sex discrimination in violation of Title VII, harassment based on sexual orientation or transgender status is a form of sex discrimination forbidden by Title VII. In other words, harassment on the basis of sexual orientation or transgender status is a form of sexual harassment prohibited by Title VII.

Sexual Orientation Harassment Lawsuit

In Mera, a man named Mera brought a hostile work environment harassment claim against his employer, SA Hospitality Group, LLC (SA), pursuant to Title VII. Mesa alleges that he was harassed on the basis of sexual orientation in violation of Title VII.

On May 23, 2022, Mera was hired by SA to work as a busser. On that same date, he signed an arbitration agreement. In the arbitration agreement, Mera agreed that any dispute relating to his employment or termination from employment would be resolved exclusively by arbitration before an arbitrator. In signing the arbitration agreement, Mera theoretically relinquished his right to bring a sexual orientation harassment claim in the court system and his right to a jury trial. Mera alleges that during his employment, he was subjected to “constant harassment and abuse” on the basis of his sexual orientation by co-workers and a manager. Mera asserts that his co-workers subjected him to homophobic slurs in Spanish, and that the manger subjected him to unwanted physical touching.

EFAA Prevents Forced Arbitration

Based on the arbitration agreement Mera signed when his employment commenced, SA filed a motion with the trial court to dismiss Mera’s sexual orientation harassment claim from the court system and compel Mera to submit his sexual orientation harassment claim to arbitration.

The trial court ruled that Mera was not required to submit his sexual orientation harassment claim to arbitration even though he signed an arbitration agreement. In support of its ruling, the trial court explained that under the EFAA, Mera is not required to arbitrate a claim “alleging conduct constituting a sexual harassment dispute.” Because Mera alleged that he was harassed based on sexual orientation, his allegations involve conduct constituting a sexual harassment dispute within the scope of the EFAA. In ruling that Mera is not required to arbitrate his sexual orientation harassment claim, the trial court also pointed out that because Mera signed an arbitration agreement, Mera would be required to resolve his sexual orientation harassment claim through arbitration “were it not for the EFAA.”

Marion County, FL Discrimination Lawyers

Based in Ocala, Florida, and representing workers throughout Florida, our sexual orientation discrimination attorneys in Marion County, Florida have dedicated their practice to fighting for the rights of employment discrimination victims. If you have been discriminated against on the basis of sexual orientation or have questions about your protection from sexual orientation discrimination under federal employment discrimination law, please contact our office for a free consultation with our sexual orientation discrimination lawyers in Marion County, Florida. Our employee rights law firm takes sexual orientation discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.