Speaker 1: 0:20

Hey, it's Mark and welcome back to the Employee Survival Guide, and today's topic is something that I'm currently working on experiencing with clients and the courts are grappling with, and that's employers continue to force arbitration in sexual harassment cases, in violation of federal law. What do I mean? I mean that employers are seeking to prevent the disclosure by plaintiff's counsel like myself and their clients from airing the dirty sexual harassment actions that are committed every day at work in a court In my case, it's always federal court and arbitration or I call it forced arbitration is something. Let's understand it, folks. It's an agreement that is fostered upon an employee without any negotiation whatsoever, a contract, and it's kind of a take-or-leave-it deal. It's a sham deal, and the employees have to choose between taking a new job with this provision of arbitrating their complaints in the future they don't know they're going to have or go elsewhere.

Speaker 1: 1:33

The President Biden signed into law an act ending forced arbitration and sexual assault and sexual harassment cases in 2022. Harassment cases in 2022. And this act was promulgated because of events that occurred prior to that and, most notably, an individual who advocated to Congress, gretchen Carlson. Thank you, gretchen to prevent sexual harassment, forced arbitration cases in the future, and she did so, and then President Biden signed into law. So it's a wonderful act. It stops the insanity of an employer's behavior to shield themselves behind the cloak and dagger secrecy of an arbitration agreement. Most employees don't understand what arbitration is and it is a default management practice that is used by employers and it's real. And it becomes really real for employees when they are now subjected to discrimination by management and they're forced to, you know, go to court because employers are not willing to settle with them, and so they're pushing, pushing, pushing and eventually they have to file suit. So today I wanted to talk about, well, what's happened and how are the employers, and who are the employers? What are they doing lately to prevent just nice folks from having their day in court in front of a jury? And I'll just jump right to it.

Speaker 1: 3:12

The list of companies is quite large. One company Every Realm Inc. Is a company that is now famous because of a famous decision, actually two of them, thanks to their own CEO who caused it all. Meetup LLC, and there's let's see. Finco Services is another company and SunWest Mortgage is another company. These are all cases that are actually reported in the federal court dockets and state court dockets, whereby the employers are challenging the employee's complaint to compel arbitration, meaning that they are challenging whether the employee has a valid claim of sex harassment in general, has a valid claim of sex harassment in general. Other companies are SA Hospital Group LLC. Paul Taylor Dance Company, cvs Pharmacy we know that one. That's a very large one.

Speaker 1: 4:15

How about Tesla? Yes, tesla actually is one of those cases Northern District, california, 2023. They choose to challenge an arbitration provision of an employee and they lost and they couldn't compel arbitration. Juul Labs we know that name, and the list goes on. Gartner Group that's a case we're litigating now. Beringer Ingelheim Pharmaceutical Company that's a case we're litigating now.

Speaker 1: 4:45

Uber Technologies, new York Life Insurance, sabre Healthcare Group, fjl Logistics, stifle Nicholas Company Actually, it's a famous Supreme Court sorry Second Circuit famous case now out of 2024,. Actually, it's a famous Supreme Court, sorry Second Circuit famous case now out of 2024, whereby Miss Oliveri was allowed to continue her case against the company in open court. And then Huntley Hotel is another case, and I spent the time to go through these employers and try to locate them as many as I could. I'm sure there are more of them, but what's happening here is—and really wanted to you know shame the employers who are challenging these nice folks to end court to claim that they didn't have cases. And I'm sure that those cases, before they got to court, employers, employment attorneys like myself attempted in good faith to resolve them, because a good employment attorney should do that prior to filing a lawsuit to protect its client from public disclosure. At the same time, ask an employer do they want to avoid public disclosure before this parade of horrible facts is set forth in a complaint? So that should happen. But when the cases get to court, employers and their attorneys are ready and gunning for any ability to throw them out of court in what's called a motion to compel arbitration, where technically, the case gets stayed and the case goes into arbitration for adjudication. So the federal court will stay the proceeding and so nothing happens. And so in a lot of these cases the courts are working out.

Speaker 1: 6:36

You know what's? How do we apply the law? And let me tell you what the law says In particular. The law I'm referring to is the Act Ending Forced Arbitration. It's called EFAA and it says, quote specifically 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 state law and relates to the sexual harassment dispute, the sexual harassment dispute. In doing so, the EFAA unequivocally ends the era of employers being able to unilaterally compel arbitration in sexual harassment cases. The statute specifically says federal, state, tribal and local law and I'm going to get to that in a second, because that's very important Federal law you have Title VII of the 1964 Civil Rights Act and for sexual harassment cases you have to demonstrate the employer's behavior was severe and pervasive.

Speaker 1: 7:47

This is a well-trotted standard the courts are familiar with. Courts are familiar with a hostile work environment, which is also a facet of sexual harassment. The other form of sexual harassment is quid pro quo, where you're basically exchanging sex favors for favoritism at work. There's another category called hostile environment in the retaliation setting, where it's retaliatory, hostile environments, what the court calls them. So you have these facets of sexual harassment and retaliation. You have these facets of sexual harassment and retaliation under Title VII. But then you have state and tribal and local law and sometimes, unlike Connecticut, state law is more liberal, not in Connecticut. You can get the gist here that I'm not too hyped up on Connecticut, which is, if you didn't know, it's a blue state and you know, but it's odd, it's like it borders Massachusetts, which is also a blue state, which has an incredible statute favoring employees and much more liberal in terms of discrimination, much like California. But so there's federal state and then there's, let's say, for example, new York City code law, which is very liberal and very broadly defined, much more encompassing than the narrow Title VII, and so what I'm getting at is this Many cases that are hidden in the court dockets.

Speaker 1: 9:21

In the courts, the judges some of whom are probably listening are forced to decide the cases. Under what statute applies? Sexual harassment, hostile environment cases the judges are familiar with that and the plaintiff has to mount facts in the complaint about how things happened and whether it was severe and pervasive, and the judge will assess that in the complaint to determine at the initial stage whether the case gets stayed and compelled into arbitration or not. So you got to meet a standard, a burden of proof, and employers are attacking this issue. I mean, what promoted this podcast episode is that the level of vigor that employers are attacking this issue is well, it's unprecedented. I mean they are just going after it to. It's almost as if, psychologically, they're pissed that the statute was passed and that's the flavor I get. I mean, these are people that I respect and know as colleagues at the defense side.

Speaker 1: 10:28

But the level of aggression that I can see in the arguments made in the various court cases I'm reading, and even the cases we're litigating, is that these employers are basically at the throat of the employee to cut it off, prevent you from getting your day further into court. Now they're already in court with their fact pattern. You can't erase that. Anybody can Google and find it. When you file a federal case, by the way, google picks it up and you can find the complaint and so it's out there. It's public. So why are employers attacking it when the fact pattern is already out there, assuming that a plaintiff attorney like myself has already attempted to pre-suit, negotiate the case beforehand? Because I send a copy of the complaint to opposing counsel to read it before I file it, because I want them to see Business folks, adults make decisions, make a decision before it gets publicly known, and I have a reputation of filing lawsuits. It's what I do, but I also have a reputation of trying to negotiate cases and sharing my complaint before it's filed. I had this exact conversation today with the opposing counsel and they know that and I want them to know that. So back to the complaint stage, where you're already filed the cat's out of the bag. The parade of horribles is there. We know who did what to whom and how bad it was.

Speaker 1: 11:48

And if you want to read something, you want to listen to something. Why don't you listen to the podcast that I had produced? It's from the Johnson versus every realm Inc case and it's named after Tao. Johnson is a former NFL player. Please listen to this episode. It's in the podcast series here and the employee survivor guide and it's titled as former NFL player Tao Tao I'm not pronouncing forced arbitration and one unbelievable CEO. I mean I had to just coin a title for her because what she did to him, I mean you just got to listen to it or read it. You can actually listen to it and I actually put the link to the actual court case itself decision where you can read exactly the detail.

Speaker 1: 12:45

There's another podcast episode I put up as well on the same day. It's Patricia Oloveri and her big win against Stifel and defeating forced arbitration and sex discrimination cases, and that case was important also because of what factually happened to her. But that case is very important because it operates on the issue of when does a claim accrue and claims have to accrue after March 3rd 2022, unless you have this what's called a continuing violation doctrine pled in your complaint, meaning that these are interrelated facts that happened before March 3rd 2022, and then thereafter, and so they become one long fact pattern of discrimination. So really take a stop and listen to these things, because these are real stories affecting real people and it's pretty amazing what employers will do In Tao's case. His employer, his CEO, I mean you just listening to it. It's not comedy, it's just. I mean it's beyond entertainment. It's troubling to listen to what is publicly out there in a federal court decision about what she did to him.

Speaker 1: 14:41

So back to the issue of employers at the throats of employees in federal court, challenging these cases and trying to attack whether their claims should be dismissed and put into arbitration. Why are we talking about all this? Because it's enormously critical for people who are involved in it or about to be involved in it or who are about to file a lawsuit, because if the court sanctions the case to be stayed or to this remaining court, that's a huge leverage factor for an employee and it gives them the opportunity to litigate their case all the way to a jury where the employer had the intention and they had the ego thought that they would be able to stop them. And enforcement arbitration and they got shut down. And when a federal court digs into a case like that, it's like the first evaluation of the claims of the case and it sends a clear message to the other side and there's a written decision about it. The court will go into the analysis. Did the person satisfy the standards for, let's say, you know gender discrimination under New York City code? You know, and the entire case would come in because it satisfies. You know the local law? I mean, that's an enormous factor and leverage to push around an employer.

Speaker 1: 15:58

Okay, so let me start to give you key points to strategize when thinking about these cases. First, determine do you have any type of city or state law that's more beneficial, more liberal definition of sexual harassment than Title VII? If you have a good sexual harassment case where there's touching and assault and all that stuff, then Title VII, that suffices and you can use that to stay in court. But if you have fact patterns because lawyers can't control the fact patterns, they are what they are when they come in. You look to more beneficial statutes like the New York City Human Rights Code and that defines loosely sexual harassment to be some form of taking gender into account when making a decision and that's pretty liberal. That's not the severe and pervasive standard of Title VII, a harder burden, no-transcript. So it's a lesser standard and you want to look for it if you can, if your fact pattern is more loosely defined as fitting into sexual harassment or fitting into, let's say, new York City Code. Because here's the trick of all this and it's no surprise Defense Counsel okay, in the federal statute, efaa said it's federal, state and local law, you just got to fit within one of them.

Speaker 1: 17:49

We had our chief judge here in the District of Connecticut issue a decision where and it basically just followed the other decisions from Southern District of New York where it said so long as the claim fit within New York City code or the local law, the entire case, meaning all the other parts of the claims we plead claims like 12 different counts. I mean race and age. All these things happen at the same time as a sexual harassment case happens. All of it comes in the case doesn't get piecemealed in arbitration and that's also significant for an employer and a very big leverage for employees. So find your local law after assessing your fact pattern.

Speaker 1: 18:31

Obviously you need to work with an employment attorney to figure out whether you have a claim of sexual harassment. I've given you the information to analyze whether you have a case of sexual harassment. You can play Tao Johnson's case and you can read his actual court decision, because I put it there so you can actually read what the standard is to help you to figure this out before you go hire an employment counsel. So employers are really on their heels and I'm so happy to see it. I mean it's just remarkable when you have that momentum of a case. You know your fact pattern is working.

Speaker 1: 19:07

We have this happening in Gartner Group where there was tossing the salad is the phrase was used between two men and if you didn't know the urban slang of tossing the salad, we didn't. We discovered it, but it was used repetitively with our client. Our client Case is currently pending, so I'll be careful not to go too far in my analysis here, but it's really short. But the plaintiff in that case against Gartner claimed that it was sexual harassment in a hostile work environment and it's likely that his case will stay in court because he met the standard under Title VII severe and pervasive and it's likely he will continue.

Speaker 1: 19:50

He also alleged a retaliatory hostile environment, which is another category, and let me just talk about that for a second because it's really important. Retaliation simply is filing an email complaint to HR and your boss saying I'm being sexually harassed, and you basically give some specifics about it, but nothing great. Essentially, the employer says well, investigate it. They won't tell you the results of it, but the act of complaining, this very act of complaining in good faith that you believed that discrimination took place, is enough to protect you. The hostile environment aspect to retaliation claim happens typically after you make the complaint. Then you experience this level of just animosity by the employer to just screw with your job duties, your pay, whatever it is, even fire you after you file the complaint.

Speaker 1: 20:45

So it's a hostile environment essentially, which means that the employer is trying to make you quit. They just, you know, create an environment where you're just blackballed, you're isolated, you're not included in anything and or you know they just do it. They can even use PIPs, performance improvement plans, anything in their arsenal to just make you quit and cry uncle, but you don't and you have to stay your course, and you should, because you know the primary objective in these cases is to remain employed as long as possible till you get your next job. And if you can create a severance negotiation with your employer, great, and you can leave through your severance agreement and start your new employer, new employment. And you can use the threat of litigation, including the aspect of sexual harassment, in your negotiations, because it applies, and you want to try to do that and you want to basically scare the crap out of the employer that you know all this new information and you're using it in such a way that indicates you have an attorney in the background helping you. Arguably, I get it. You know, would an employer listen more to an attorney who's representing you? Yes, but it doesn't mean you can't try it.

Speaker 1: 22:05

I mean, the whole idea of this podcast is to put real life information in your hands to utilize as a tool. I mean, it's the reason why I do this, so you can just listen to it. I'm not talking with you in a way that is highfalutin over your head, talking like a lawyer. It's like I don't really give a shit about all that. I just want to try to synthesize things in a way that can be understandable so you can use it. Use it for yourself, advocate for yourself. I mean digesting a podcast episode, even produced by an AI device, can still produce information for you because it's based upon what A written decision the Tao Johnson case that was literally the episode was based upon an actual written decision by a federal court that the AI narrative device produced for you to listen to, to basically hone down its parts, and then, for clarity's sake, I included the link to the actual case decision so you can read it. Obviously, the case decision doesn't read like a podcast episode, but that's the point of using that. It's to educate and that's the whole point of the whole podcast that I'm trying to do.

Speaker 1: 23:13

So putting tools into your possession, taking away the highfalutin nature of legal advice and courts and all that it's unnecessary, and giving you access to this information and giving you access to this information. So here we have access to information regarding forced arbitration, a federal statute that you can use to help yourself to get what you need, typically severance negotiation. If you ever had to file a lawsuit, you better know why you're doing that, and a good counsel would remind you why you're doing it before you do it, because I do that I don't want people to file a lawsuit so they don't have to. And so back to the point here is we have forced arbitration being used by employers and pushing on employees who have good claims, claims that meet the standard, but they're putting pressure on them after they filed suit to challenge them, instead of saying, ok, you warned us, you did it, ok, let's just deal with the case and just go on with it, instead of trying to challenge them and basically say we're going to force arbitration on you. I mean, that's the whole point of this episode.

Speaker 1: 24:23

Is the various list of companies I gave you, these notable household names, no-transcript? Maybe they'll if the message gets out that they'll always be sued if we, if you, file a suit against them and we'll try to force arbitration, like somehow that will help the company and maybe that's it. Maybe that's why they're doing it to. You know, give their strong-armed approach to like you know we're going to F with you and you know you do it, we're going to come after you, we're going to bleed you dry. I'm not kidding, this is literally what happens. I mean the mentality of corporations and their defense counsel. I mean, this is what they do for bread and butter, living and outside counsel are more than happy to do this, you know, to follow the directions of their corporate clients. And you know I have good friends of mine who are opposite side of the aisle and they're making their living in defense counsel world to push these motions to compel arbitration.

Speaker 1: 25:41

But these are companies that you're driving their car, you're taking their Uber, you're going to their pharmacy and these are the cultures that they're putting the thumbscrews to their own employees and you've got to be aware of it. To do what? To silence them? To attempt to silence them Because now the court case is public, but all the discovery and all the decisions that occur afterwards, because a complaint just starts, the practice of, you know, the complaint is the initial pleading, it's the arbitrator or the court has yet to make a decision and it's the actions by the employers in their cultures to threat and deter them and also to prevent the decision from becoming public, the decision by the court, because they don't want to be wrong. Employers don't want to be wrong.

Speaker 1: 26:34

You know that they allowed a senior executive at Gardner to use sexually provocative information with his subordinate employee and then suggest that he and another male employee are engaging in, you know, tossing the salad, which is you know? You know I won't get into it, but it's, it's provocative, sexually provocative, sexually hostile, and arguably the defendant said that was just a joke. I don't know if you know what I'm talking about, but you don't normally just tell a colleague that you're going to go toss a salad with your other colleague. It's like what are you talking about? These corporations that just spew this nonsense of DEI and all that stuff that was happening, which is now over. Now they're undermining employees in such a way that you need to understand that Happening across the country, large and small corporations but trying to silence employees in violation of a federal statute.

Speaker 1: 27:38

Now, employers have rights to defend themselves and I'm not going to just go errant liberal on you whatever, because I'm not liberal, although I do the good deed and work for employees. But the employers have an opportunity to defend themselves. I'm not going to say that they can't, but you know, when faced with that decision, you've got the complaint before it's being filed, because Kerry sent it to you and you and your internal counsel are assessing the issue, which I have several of these cases happening right now where I'm doing exactly that giving them an opportunity to take a hard look at it and they can get to decide for themselves. What are we going to do here? We can let them file the complaint we won't challenge them for arbitration and just proceed to litigate it. They can do that, they can decide to do that, but they don't. They force arbitration through motion to compel arbitration or attempt to do it, and then they challenge the plaintiff what's called a motion to dismiss saying you didn't meet the standard severe and pervasive or you didn't meet the standard for New York City code law, that gender was not taken into account when making decisions. And so the employers have the ability to determine before the suit happens, because we send the lawsuit to them to consider resolving it. But they don't and they make this knowing decision to go into court. They know this is a hot topic. They know that plaintiff's lawyers are all over this shit about forced arbitration. There's a federal law signed by the president of the United States saying you got to stop this. You can't do it, it's against the law, you can't enforce the arbitration agreement, but yet they're still doing it. And they're doing it on cases that have viable fact patterns that meet the standards, but they're still doing it.

Speaker 1: 29:26

These are corporations you might work for and you know, if you're involved in this case in the future, you're going to be now forewarned. Is that you know? What is it about this company culture you work for? I mean you know your day is as this company culture you work for. I mean you know your day is as good as the next day, the last minute you just worked. I mean you're at will, typically, there all are.

Speaker 1: 29:46

And so you know, does this change your mindset about you know employers who use this tactic against you? Know victims of discrimination? I mean, let's go there. Why are you treating somebody who's a victim of discrimination and why are you covering this up? I mean, we had a Me Too event that happened and we shamed as many people as we could. We engaged in cancel culture, although that was kind of ridiculous, but I mean, but nothing has really changed and I need to make that point too. Nothing really has changed and employers are back at it to cover it all up again, and the only person calling it out is, well, yours truly, because that's what I do and I don't really care anymore, because that's what I see, if you see something you say it, don't you? I mean I do.

Speaker 1: 30:54

So that's the importance of this episode is like company cultures attacking victims of discrimination, using forced arbitration agreements to challenge them in open court and just apply full, full court pressure on just individuals who just never saw this coming. And what the employers missed was why didn't they see it coming on their end from their own management of their own employees, who are managers, who committed these acts and sometimes these acts can be committed by coworkers too. But management, I mean they should have known. And they just do the same stupid thing. They just cover it up, put it underneath the old rug and it's almost rinse repeat over and over again. And there's no, these are the companies you work for. I mean I can't express to you it's like this doublespeak that comes out of companies. It's just ridiculous and my job is to call it out. This is an example of calling it out. Employers commit the same tragedies of sexual harassment as they did beforehand. It's only getting worse. So I keep reporting on these cases and just calling out again.

Speaker 1: 31:49

I'm trying to put the case law, the rule of law they hear about that phrase a lot into your hands. I mean accessibility to this information, using any creative way I can, and I'm using it currently, using AI devices to synthesize case decisions for you to digest in a way that's really kind of conversational and sometimes I think better than I can do it. I mean, I get kind of bogged down in the fact pattern itself. And you know, I have done these episodes where I've read written decisions and I don't know if that's pissing you off or whether it's entertaining you or you're just laughing at me, but I don't care. It's just how do I get you to access the meaningful parts of cases. You know whether it's the, if you're interested in the entertainment value of these fact patterns, of these people, because people are interested in, you know, true crime podcasts. I mean this is true crime employment podcast. I don't know what people motivate people while they listen to it, but I want to give access to episodes in a way, or to case decisions in a way that you can easily access it. I mean, get the major points from it, learn, take away, do something, use it in your own life. That's the whole point Because frankly and I'll just kind of end with this because the law can be so esoteric I mean true stories, like early on you go to law school, you try to engage the material and it's just.

Speaker 1: 33:17

It's like dry, bland and boring. It only takes I don't know, 28 years. Now I get it. It's like, wait a minute, there's a story of a real person here happening. It can be entertainment, of course, but it's also going to be a learning experience and help people yourself and try to digest this stuff, because court cases when you read them and see the links I attach, like you know, this is not the easiest of reading and like there's no way to compare in terms of other reading unless you're a lawyer. I mean, if you're a lawyer, you read this shit all the time. I mean, you're so used to reading this language.

Speaker 1: 33:57

I mean, some judges, thankfully, they have an art of writing and they can just develop a fact pattern, but majority of the time there's a stylistic writing that just, I know it's the law, it's called case law, but it's just not written for the everyday person. And these are meaningful judges and these are meaningful judges, but it's just and my point of all this is trying to give you access to these very important pieces of law that affect your life, because you need to have access to it. But how do you synthesize it? Without going to law school? And you shouldn't be, because it's just the law. And so, again, that's the point of the podcast itself, but also a point of using AI to synthesize some of these cases, which are really important.

Speaker 1: 34:40

So I'll deviate between doing them, but moral of the story today for forced arbitration in sexual harassment cases, employers are still trying to attack the issue and it's almost as if they're just embarrassed and shamed when they're being challenged and they just don't like it. They're like little kids in a sandbox and they want to, just, you know, spit at you and just scratch and like it. Just, it's all juvenile and there's a way around it. And the way around it is find the most liberal statute you can that fits within, let's say, for New York City. You work in New York City. Use that statute, it will benefit you to the nth degree because the court is forced to use it, because that's the rule of law and you can get around forced arbitration.

Speaker 1: 35:22

Have your day in court, go to a jury and tell your story and get a decision from the court that does what? Shames that employer to make them stop it. But they don't stop it, because there's always more cases, and that's the horrible. Underlying theme of this is that there's always more cases, and I wish that was the opposite was true, but it's not so. Sorry, long winded episode for you, but forced arbitration is still happening. Be aware of it. It's still developing and I'm in the midst of it and getting creative with it, trying to get the message out to you. There you have it. Have a great day, take care.