Category: Discrimination, Sexual Harassment, Wrongful Termination

Many California employers try to force their employees into accepting binding arbitration agreements as a condition of employment. Arbitration means that if an employee is a victim of sexual harassment or any other type of illegal workplace discrimination, he or she forfeits any right to bring a lawsuit in court and instead must appear before a private arbitrator, who in many cases is selected by the employer. Federal law makes most arbitration awards binding, thereby limiting the employee’s ability to seek judicial review.

Acknowledgment Does Not Equal Consent to Arbitration

Some employers go so far as to trick employees into consenting to an arbitration agreement. But some California courts are rejecting such trickery. A state appeals court in Los Angeles recently issued a published decision refusing an employer’s request to compel arbitration based solely on the contents of an “employee handbook.”

The plaintiff in this case is a woman who worked for less than a year at a hotel. After her employment ended, she sued the hotel in California state court, alleging she was a victim of sexual harassment, sex discrimination, and wrongful termination. More than a year after this lawsuit was filed, the employer moved to compel arbitration.

As noted above, the purported arbitration agreement here consisted of language contained in an employee handbook that the plaintiff received on the day she started work. Although the cover letter of the handbook expressly stated the document was “not intended to be a contract (express or implied), nor is it intended to otherwise create any legally enforceable obligations on the part of the Company or its employees,” a subsequent section stated that the employee agreed to “utilize binding arbitration to resolve all disputes that may arise out of the employment context.” The employer argued that this language created a binding arbitration agreement, since the plaintiff was required to sign a statement acknowledging that she was required to “read” the handbook.

A trial court rejected the employer’s motion, finding the handbook did not create a “binding agreement to arbitrate.” The California Second District Court of Appeals agreed. The appeals court pointed to the cover letter that said the handbook, which included the arbitration language at issue, was not a contract: “Defendants now ask us to find that the arbitration provision did create a legally enforceable obligation, despite the express language to the contrary.” The court said it would not do so, given there was no “mutual assent” between the parties. The plaintiff’s signature was not a consent to arbitration; rather, it was an acknowledgment that she had agreed to read the handbook within a week of starting her employment. Given that she had not read the handbook before signing the acknowledgment, the court said it could not assume that she had agreed to the arbitration language.

Fighting for Your Day in Court

While the plaintiff in this case will get her day in court, there are many other situations in which courts can and have enforced arbitration agreements. This is why if you have been the victim of sexual harassment or any similar illegal conduct, it is imperative that you speak with an experienced San Jose workplace discrimination attorney as soon as possible. Contact the Briski Law Firm if you need to speak with a sexual harassment lawyer today.