Congress Bans Arbitration Provisions Covering Sexual Harassment and Sexual Assault Claims

Litigants alleging sexual harassment and/or sexual assault in the workplace want to have their day in court and have their cases decided by jury trials. However, in an attempt to keep such disputes out of the public eye, employers frequently require their employees to sign arbitration agreements, so the claims at issue are decided by a private arbitrator (rather than decided in court). That appears to be changing in matters involving claims alleging sexual harassment or assault. Indeed, on February 7, 2022, and February 10, 2022, respectively, both the Senate and House of Representatives passed H.R. 4445, which is known as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.” President Biden is expected to sign the bill into law.

The proposed legislation provides, in relevant part, that: “at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.” (Emphasis added). In addition, the proposed legislation provides that, if there is a dispute regarding whether the legislation applies to an arbitration agreement, such dispute will be determined by a court, rather than an arbitrator. Notably, the “Act and the amendments made by this Act, shall apply with respect to any dispute or claim that arises or accrues on or after the enactment of this act.” Therefore, it appears as though the Act applies prospectively but can apply retroactively to signed agreements prior to the enactment of the Act.

Without question, this bill is an important victory for employees who are subject to sexual harassment or sexual assault in the workplace. First and foremost, it provides express statutory authority to keep their claims in court. In addition, it puts more pressure and scrutiny on employers since these claims will be litigated in a public forum.

If you have any questions about this Act and/or believe you have been subject to workplace harassment, please contact [nap_names id=”FIRM-NAME-1″].

*Frank A. Custode, Esq., is a Partner of [nap_names id=”FIRM-NAME-1″] and the Chair of the firm’s Employment Practice.

Female employee sues Tesla for sexual harassment

Workers in New Jersey and elsewhere are entitled to fair treatment in the workplace. Unfortunately, many people are subject to sexual harassment on a daily basis at work. Recently, a female employee of Tesla had the last straw and sued the company for that very reason.

What does the lawsuit allege?

Sexual harassment in New Jersey and other states is illegal. Regardless, it happens all the time in all industries. Tesla is no exception as a woman who has been employed there for three years filed a lawsuit claiming that she has had to put up with catcalls and unwanted touching by male coworkers.

The woman stated that she finally had enough when she returned from a lunch break and a male coworker intimately touched her. She went to an attorney and filed a sexual harassment lawsuit. She said that it wasn’t the first complaint she made about her coworkers being inappropriate. Her managers were aware of the harassment and toxic workplace culture but failed to do anything to protect her.

Past lawsuits against the company

In addition to New Jersey sexual harassment, other types of harassment are illegal. Sadly, there are still abusers who are emboldened to continue with this type of behavior. Another former worker at the same Tesla plant filed a lawsuit alleging racial harassment. The man, who is Black, stated that he was constantly subjected to a hostile work environment that was allowed to go on.

Effects of sexual harassment at work

Workplace sexual harassment can have devastating effects on victims. They often experience anxiety and post-traumatic stress disorder or PTSD. Some might even need to take medical leave while dealing with all of it. The woman who works for Tesla is no exception. Sexual harassment is unacceptable. If you experience it at work, you have options for fighting back.

Sexual harassment and remote work in New Jersey

Sexual harassment at work is illegal in New Jersey. Sadly, even as the world progresses by having better laws, sexual harassment is still rampant and has also adapted to people working remotely. If you have been a victim, here’s what you need to know.

New Jersey laws against sexual harassment

New Jersey employment law protects every employee from any sort of discrimination when working in-office or remotely. The Law Against Discrimination (LAD) and Title VΠ allows you to seek damages for pain and suffering caused by sexual harassment, including the attorney’s fees you used to fight for your rights.

What constitutes sexual harassment in the remote workplace?

Remote sexual harassment is conducted through a variety of modern technologies; however, they still look similar to in-office harassment. It can manifest itself in the following ways:
1. Messages that are sexually suggestive – Text messages, emojis, GIFs, pictures, emails, requests, comments, chats that contain sexual content or seem flirtatious constitute harassment.
2. Subjecting a person to sexual content – When someone deliberately or accidentally shows you’re their intimate body parts or shares pornographic video, pictures, or audio with you.
3. Statement or questions that are sexual in nature – If you are in a conference call or video meeting and someone makes flirtatious or romantic advances on you (it doesn’t have to be sexually explicit).
4. Quid pro quo sexual harassment – This is when your boss expects you to engage in sexual activity to gain favors at work, like a promotion.
5. Any other behavior that is sexual in nature – Any sort of communication or behavior that is inappropriate and makes you uncomfortable can constitute harassment.

Why is sexual harassment common in remote workplaces?

• It can be challenging to monitor the conduct of employees working together remotely through an online platform.
• Sometimes, there aren’t witnesses to prove harassment in a remote workspace.
• There is decreased civility and formality when people are working from home.
• There isn’t enough information about how employers should address online sexual behaviors.
• Most people are not aware of behaviors that constitute sexual harassment.

Speak up when you are a victim of sexual harassment. The law is on your side. Don’t let this behavior affect you and any other employer working at your company.

Sexual harassment report prompts Cuomo to step down

New Jersey residents are no strangers to political scandal and controversy, but even they may be surprised at how quickly allegations of sexual harassment made New York Gov. Andrew Cuomo’s position untenable. Cuomo announced his resignation on Aug. 13 after investigators from the New York State Office of the Attorney General concluded that he had harassed almost a dozen women and retaliated against at least one of them. The resignation came less than a year after the 63-year-old Democrat was considered a hero by many and lauded as a possible future presidential candidate by the media.

Reelection plans

Cuomo made his announcement as the state legislature was preparing to begin the process of impeaching and removing him, and he could still face criminal charges according to officials. When the AG’s report was released on Aug. 3, Cuomo dismissed the findings and claimed that his behavior was merely a reflection of his Italian heritage. He also vowed to run for reelection in 2022. This response was met with outrage from both sides of the political aisle and prompted former allies including House majority Leader Nancy Pelosi, Senate Majority Leader Chuck Schumer and President Joe Biden to distance themselves from Cuomo and call for his resignation.

Fear and intimidation

According to the AG’s report, Cuomo’s sexual harassment created a work environment where female staff lived in fear. He is alleged to have subjected female workers to indecent comments, unwanted kisses and groping. When one of his victims complained and threatened to step forward, Cuomo is said to have tried to limit the political damage by leaking her confidential files to the media. During his press conference, Cuomo denied any malicious intent and continued to describe his behavior as innocent. The resignation marks an ignominious end to a career in public service that began in 1984, but Cuomo’s legal woes may be far from over.

Criminal investigations and civil lawsuits

This is because prosecutors in New York, Nassau, Westchester, Albany and Oswego counties have requested evidence from the AG’s office as they conduct their own criminal investigations, and several of Cuomo’s victims are expected to file sexual harassment lawsuits against the disgraced politician. Experts expect these lawsuits to be settled discretely as the evidence gathered by the AG’s investigators could make it difficult for Cuomo to prevail in court.

What are the signs of sexual harassment women employees face?

In spite of the laws against sexual harassment, women in New Jersey and around the country still face this problem often at work. Sexual harassment involves unwelcome, inappropriate behavior or acts against a person. It is offensive and threatening and can cause a person’s work and productivity to suffer. You should know how to recognize the signs of it.

Unwanted comments about physical appearance

While people pay compliments about personal appearance often, there’s a difference between a regular compliment and sexual harassment. A comment of a sexual nature that is inappropriate and makes a woman feel uncomfortable is considered harassment. For example, telling a woman that her backside looks good is sexual harassment.

Digital media stalking

Stalking through digital media via the internet can be considered sexual harassment. If the victim is receiving inappropriate, offensive messages, photos, or videos that are not at all subtle, it can make them very uncomfortable. Doing this during working hours or during non-working hours counts as sexual harassment. If the victim tells the other person to stop and they don’t comply, she can take action with her employer.

Physical harassment

Unwanted physical contact such as touching or blocking a person from moving is considered sexual harassment. It can be something as simple as a hand on the back, leaning too close to them, or rubbing a shoulder.

Continuous flirting without consent

Flirting with a woman in the office once is one thing, but if the individual continuously flirts when she lets them know she’s not interested, it’s considered sexual harassment.

Romantic relationships that end

Sometimes, co-workers might end up dating. However, if the couple breaks up and still has to work together, things can become awkward. If one person tries to win the other back and won’t take no for an answer, threatens them, or touches them in a sexual manner, it’s sexual harassment.

Unwelcome comments and jokes

Another type of sexual harassment is when a person makes unwelcome comments or jokes of a sexual nature. Even if some people find this amusing or funny, not everyone feels the same way. Such comments can make the workplace environment hostile and cause some people to feel uncomfortable.

Sexual harassment is something no one should have to endure. It’s especially problematic in the workplace. It’s important to speak up and inform your supervisor if you’ve faced it.

What types of behavior can create a hostile work environment?

Many New Jersey workers enjoy, or at least tolerate, their jobs. Unfortunately, this isn’t always the case. Sometimes, people can find themselves in hostile work environments. To gain a better understanding of this issue, here’s a closer look at a few types of behavior that contribute to a hostile workplace.

Discriminating against others

One of the most common types of behavior contributing to a hostile workplace is discrimination. Unfortunately, discrimination can come in many forms. Someone can get discriminated against based on their age, race, gender identity, ethnicity, religion, sexual orientation, or for having a disability.

Being mentally or physically abusive

Abuse is another major problem in hostile workplaces. Sadly, abuse can come in many forms. Common examples of abusive behavior in the workplace can include sexual harassment, threatening other workers, or physically assaulting employees.

Having a low morale

Understandably, most companies want to have a team full of motivated employees. However, workers stuck in a hostile workplace often lose their sense of motivation. Over time, these employees can have extremely low morale. You will typically notice this happening when the work performance of one or more employees begins dropping.

Not being accountable

In a workplace, people need to hold others accountable. If this isn’t happening, it can cause employees to have negative feelings about the company they work for. Without any sense of accountability, it’s easy for bad behaviors to become prevalent throughout a business.

As you can see, several behaviors can lead to a hostile workplace. If you’re working in a hostile environment, it could be beneficial to contact an employment law attorney. An attorney can potentially help you obtain damages from your current employer.

Men: the silent victims of sexual harassment

When one hears the term “sexual harassment,” it is almost always assumed to be a woman who is being harassed. The culture of women as the only victims of sexual harassment has been fueled by successful lawsuits and advocacy efforts such as the #metoo movement. However, women are not the only victims of this practice. They might not draw attention to themselves as victims, but men are frequently harassed as well in New Jersey and across the country.

Differences between harassment of men and women

Women have typically been considered the more vulnerable sex. As the stereotypical strong, silent type, men are rarely perceived to be the victims in the same manner as women. Men tend to not speak up about their experience because they might be too embarrassed, or they might feel like complaining about sexual harassment does not align with the masculine image they try to portray.

Because women may consider themselves the only ones who can be the victims of harassment, they might not recognize the fact that they are actually the perpetrators of sexual harassment of men. Other men can also sexually harass men, especially in a workplace environment. Sexual harassment can include lewd comments, unwanted touching and even photos or videos of sexual materials if the behavior is unwelcome.

The reality of it

Unfortunately, incidents of sexual harassment of men are common in work environments. The longer men keep quiet about this type of treatment, the more likely it is they will suffer harm. Sexual harassment is illegal in the workplace, so both men and women have rights against unwanted behavior. If it has gotten to the point where legal intervention needs to be considered, a sexual harassment lawyer can advise a worker about their options.

What can you do if you experience sexual harassment?

Unfortunately, many people experience sexual harassment in New Jersey on a regular basis. From work to school, sexual harassment can happen anywhere. Victims of sexual harassment may struggle to carry on with their normal activities due to stress, shame or fear. Read on to learn what you can do to protect your rights if you’re a victim of sexual harassment.

What is sexual harassment?

In the workplace, sexual harassment can occur whenever someone you work with makes unwanted sexual advances or acts inappropriately in a way that interferes with your ability to perform job duties. Examples of sexual harassment in the workplace could include:

  • Saying negative things about people of a specific gender or sexual orientation
  • Making inappropriate or offensive comments about a person’s appearance
  • Asking for sexual favors
  • Making offensive jokes of a sexual nature

What can you do if you experience workplace sexual harassment?

If you’re being harassed in the workplace, you have several rights and legal options to protect yourself. First, write down the details of every incident, including who harassed you and when it happened. If you feel that it’s safe to communicate to the offender, let them know that you find their behavior to be inappropriate and offensive. If the harassment continues, speak to a trusted supervisor or to someone from Human Resources. Take notes about all conversations you have.

If your efforts fail to provide you with the results you’re looking for, consider speaking to an experienced attorney. Sexual harassment is illegal in every state, and you should never have to work in an environment that makes you feel unsafe or discriminated against. An attorney may be able to explain your rights and help you take the next steps necessary to resolve the issue.

Recognizing Sexual Harassment

Historians cite 1974 as the year when the courts first heard a sexual harassment lawsuit. Today, the legal system provides a far better mechanism to punish those who harass employees and others. Even with laws in place, sexual harassment continues in New Jersey workplaces and elsewhere. Harassment takes many forms and could make a work environment hostile to those experiencing unwanted advancements.

Sexual harassment in the workplace

At work, someone may experience sexual harassment in the form of quid pro quo. That is, a supervisor could pressure an employee for sex in exchange for a promotion. Others may even make requests for sexual contact as the condition for remaining employed. Both actions, of course, are not allowed under the law.

Sexual harassment could include actions besides quid pro quo arrangements. Telling explicit jokes or conducting oneself in a manner that degrades others, such as inappropriate touching or comments, may be forms of sexual harassment. Sending unwanted and sexually explicit messages or images on an electronic device might also lead to sexual harassment claims.

A victim of workplace sexual harassment might not experience inappropriate behavior from a supervisor. Co-workers could also sexually harass someone. And if a co-worker harasses a colleague, questions arise about the management’s response to the situation. Supervisors who ignore complaints or who threaten employees to be quiet about harassment may expose themselves to liabilities.

Sexual harassment outside the workplace

An employer could harass an employee at a location away from work on a day outside or working hours. For example, the action could occur at a convention, expo, office party, and so on.

Sexual harassment may not even involve work. Harassment could occur in an educational environment, a political campaign office, and other settings. Any harassment, no matter where it occurs, could lead someone into severe legal jeopardies.

Sexual harassment takes place in many forms in the workplace and other environments. Victims of sexual harassment have rights under the law and could take steps to file a lawsuit. Consulting with an attorney to determine a course of legal action may prove necessary.

Verkada is under fire for alleged sexual harassment

The surveillance company Verkada has recently come under fire for allegedly sexually harassing female employees. Verkada’s office is outfitted with its own brand of security cameras. In 2019, one of the sales directors gathered images of female employees that had been taken by the cameras. He then reportedly uploaded these pictures to a private Slack channel for male Verkada employees and made sexually explicit remarks about the women.

When employees found out about Slack channel, they reported it to higher-ups in the company. However, the employees say that the men in the Slack channel faced minimal consequences. The men were told they could either leave willingly or face a cut in their stock options. All the men chose to stay and deal with reduced stock options.

One of the employees who reported the incident was shocked by the leniency of the punishment. According to another employee, the sales team mostly consisted of men who had been football buddies in high school and had a low opinion of women. One of the board chairmen claimed that he deliberately hired athletes to promote a “fun” atmosphere in the workplace. However, this atmosphere also allegedly fostered sexism and sexual harassment.

In a statement, Verkada claimed that the company investigated the Slack channel as soon as it was brought to attention. Representatives said that the channel was deleted before they could access it, but they still gathered the names of the employees involved. They also claimed that they swiftly disciplined the men involved with the channel. In a separate statement, Verkada claimed that the company does not tolerate any form of sexual harassment and said it was working directly with the female employees who had been affected.

Dealing with sexual harassment is a reality for many women in the workplace. However, it doesn’t have to be. United States employment law makes it illegal for employers to sexually harass their employees or discriminate against them because of their gender.

You might wish to hire an employment law attorney to handle your case. An attorney may be able to file a suit against the company that exposes wrongful behavior and helps you receive justice.