Wear Trial Law represents employees subjected to sexual harassment and sexual assault at work. Two developments matter enormously and are widely unknown: federal law now allows an employee to void a pre-dispute arbitration agreement for these claims, and California law has expressly rejected several of the doctrines employers long used to get harassment cases dismissed before trial.
Your arbitration agreement may not bind you
The federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act permits a person asserting a sexual harassment or sexual assault dispute to elect to void a pre-dispute arbitration agreement and proceed in court.
This matters more than it may sound. Arbitration is confidential, decided by an arbitrator the employer’s counsel may appear before repeatedly, and generally unappealable. Employers rely on it heavily in these cases.
If you were told your claim must go to arbitration, that may no longer be correct. It is worth a conversation before accepting it.
California rejected the doctrines that killed these cases
California law states expressly that a single incident may be enough to create a hostile work environment, that harassment cases are rarely appropriate for disposition on summary judgment, and that discriminatory remarks may be relevant evidence even when not made directly in the decision-making process.
Each of those provisions overturned a line of cases employers had used successfully for years. Many employees are still told their situation “isn’t severe enough.” Frequently that assessment reflects the old law.
Sexual assault at work is more than a harassment claim
Where the conduct was an assault, the claim is not only harassment. It may include assault and battery, negligent hiring, supervision, and retention, and claims arising from how the employer responded to the report.
Workers’ compensation exclusivity does not necessarily bar these claims. And California’s revival provisions for adult sexual assault claims may reach workplace assaults where the timing and cover-up requirements are met. See Adult Sexual Assault and Revival Windows: What’s Open Right Now.
You may not be required to stay silent
California substantially restricts the use of non-disclosure provisions in settlements of harassment, discrimination, and retaliation claims. An employer generally cannot require an employee to conceal the underlying facts, though the settlement amount may remain confidential.
If you signed a severance agreement containing a broad NDA, do not assume it forecloses everything. Have it reviewed.
What to preserve now
Your own contemporaneous notes with dates. Texts, emails, and messaging-app records — forwarded to a personal account where lawful. Your complaint and the employer’s response. Performance reviews from before and after you complained. Names of witnesses and anyone else who experienced similar treatment. The employee handbook and the policy the employer did not follow.
Confidential and free. Call 415-233-9688. Please share only general details until a conflict check is complete.
Frequently Asked Questions
FAQ
Federal law may allow you to void it for these claims.
California law expressly provides that a single incident may suffice.
Not fatal. Many valid claims involve no formal complaint.
An inadequate investigation is frequently evidence for the employee.
Have it reviewed. California limits what those agreements can require.
Request a Free, Confidential Consultation
You Are Not Alone. Speak directly with Michael Wear in a free, confidential consultation.
Talk to Us