The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act is Bearing Fruit for Victims of Workplace Misconduct in New York

The recently enacted Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) represents one of the more impactful new laws affecting cases of workplace harassment, discrimination, and retaliation. Many employers historically force all new employees to agree to mandatory arbitration as a condition of accepting a job, then try to use that agreement to force workers’ claims of harassment into arbitration settings that the employers believed would be more advantageous to them. Now, with the EFAA in place, many workers harmed by sexual harassment can avoid that arbitration outcome, even if they signed an arbitration agreement when they took their jobs. An experienced New York sexual harassment lawyer can provide in-depth information and advice about whether the EFAA applies to your case and exactly how it may help you.

A recent case from here in New York City shows how the EFAA can work in an employee’s favor.

The employee, B.D., was an experienced costumer who, in September 2021, thought she’d landed a dream job — working as a costumer with one of Manhattan’s most prestigious dance troupes.

Like most employees starting new jobs, the costumer went through an “onboarding process” that included signing several agreements. One was a “Terms and Conditions Agreement” that contained a “Dispute Resolution Protocol.” That protocol required all employees to arbitrate “any dispute arising out of or relating to your employment with your company.”

According to the costumer, problems emerged almost right away. One, the employer allegedly did not provide her a space to lactate that met the law’s standards. In fact, the employer allegedly didn’t provide her with a private space at all, leaving her to express milk at her work desk.

Proper Pumping Accommodations Under New York Law

Failing to provide a lactating mother with an appropriate location to pump breast milk violates New York State and New York City law. In 2017, New York State enacted the Nursing Mothers in the Workplace Act. That law said that most employers must provide a pumping mother with a private room for expressing milk and that room must be close to where the nursing mother works. The space cannot be a bathroom and must have “a chair and small table or other flat surface.”

If the employer doesn’t have a dedicated room for lactation, it may utilize a private room that’s temporarily vacant. The employer may use a cubicle as a last resort, but only if it is “fully enclosed with walls at least seven feet tall.”

New York City passed Local Laws 185 and 186 in 2018. Local Law 185 says that a lactation accommodation must not be a bathroom, must be sanitary, must be “shielded from view,” and must be “free from intrusion.” The space must, at a minimum, have an electrical outlet, a chair, and a “surface on which to place a breast pump and other personal items, and nearby access to running water.”

Another gender-based problem, according to the costumer, was the executive director’s reaction to her baby (and how it differed from his treatment of male workers with children.)

Shortly after the costumer started, the company performed at the Kennedy Center in Washington, D.C. Allegedly, the baby’s presence later caused the executive director to “launch into a tirade” about the costumer bringing the baby, declaring that “it was ‘completely unacceptable for a child to appear in any [company] workspace, ever.’ The director allegedly did not “similarly criticize male employees, including [B.D.’s] husband,” for bringing their kids to work.

The company fired the costumer in July 2022, so the costumer sued for discrimination and retaliation.

The employer subsequently asked the court to force the two sides to arbitrate the dispute, arguing that the costumer had voluntarily consented to the protocol, and the protocol entitled it to demand compulsory arbitration. The customer, however, argued that the EFAA entitled her to choose litigation over arbitration.

The EFAA is a federal act that amended the Federal Arbitration Act. The FAA, as amended by the EFAA, now says that “no predispute arbitration agreement… shall be valid or enforceable concerning a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or sexual harassment dispute” if the worker alleging sexual harassment or sexual assault elects to litigate rather than arbitrate.

When the EFAA Does — and Doesn’t — Apply

The judge in the costumer’s case explained that workers seeking to invoke the EFAA and avoid arbitration must allege a plausible “claim of sexual harassment, rather than merely assert a non-frivolous claim.” Additionally, the court explained that when a worker presents a multi-claim complaint where only a portion of those claims relate to sexual harassment, the EFAA prevents arbitration of the whole dispute, not just the sexual harassment claims.

In ruling in favor of the costumer, the court clarified that you do not necessarily have to label your claim(s) as “sexual harassment” for the EFAA to apply to your case. The court’s analysis focuses on the substance of the allegations, not the labels placed on the claims. The costumer, the judge noted, expressly asserted throughout her complaint that she was harmed by a hostile work environment, and “hostile work environment” is one of the two recognized theories of sexual harassment.

The costumer advanced claims under federal law (Title VII,) state law (the New York State Human Rights Law,) and city law (the New York City Human Rights Law.) Of those three, the NYCHRL imposes upon workers the lowest hurdle, so that was the standard the court used.

The NYCHRL says that a worker who alleges “a hostile work environment theory of sexual harassment only needs to show that ‘she has been treated less well than other employees because of her gender,’ or put differently, faced ‘unwanted gender-based conduct.’” The costumer alleged that the executive director — upon seeing her “visibly pregnant” at her June 2021 interview — asked the production manager “What will she do with the baby?”

She also alleged that the director initially hired a man with lesser qualifications. According to the lawsuit, the director also told the production manager that B.D. (as a new mom) was a “liability” and told B.D. that “it was ‘completely unacceptable for a child to appear in any [Company] workspace, ever,'” but never similarly criticized male workers, including B.D.’s husband, for bringing children to work.

The complaint furthermore recounted an incident in which the director “reached across” the costumer’s body and “hovered closely over” her while she pumped breast milk at her desk.

These allegations, the court ruled, were enough to meet the comparatively modest requirements of the NYCHRL in plausibly stating a case in which the costumer was treated less well at work because she was a woman.

Today, the law has more options than ever for people harmed by sexual harassment in the workplace. Even if you signed a contract at the start of your job where you consented to arbitrate harassment and discrimination disputes, new laws may allow you to defeat that agreement and pursue justice in a court of law. The knowledgeable New York sexual harassment attorneys at Phillips & Associates are here to help. Our team recognizes that no worker should have to endure workplace sexual harassment, and we’re here to fight for you if you have faced that sort of illegal conduct. Contact us online or at (833) 529-3476 to set up a free and confidential consultation today.

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