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Bryant Whitten, LLP

California measure may help sexual harassment victims

In the wake of the #MeToo movement, California lawmakers have passed a bill that may help victims of sexual harassment and other discrimination have their day in court and, thus, have a better chance of getting the justice they deserve.

One of the problems that the #MeToo movement, which is an ongoing social backlash against the pervasive problem of sexual harassment in the workplace, uncovered involves mandatory arbitration agreements.

Many employers in California and other places often expect their employees to sign arbitration clauses as part of their onboarding. These agreements, which employers may offer on a take-it-or-leave-it basis, compel an employee who feels they are a victim of sexual harassment or certain other claims to use arbitration to resolve them.

While arbitration is supposed to be a fair and neutral process, it does not involve a judge or jury, but instead has an arbitrator or panel of arbitrators making a decision. Moreover, it does not require parties to abide by strict rules of evidence, and it is usually relatively secretive. The bottom line is that employers can frequently use arbitration to stack the deck against victims of sexual harassment, and they can do so without being exposed publicly.

Now, assuming the governor will sign the bill currently on his desk, such agreements will still be allowed, but only on a strictly voluntary basis. In other words, an arbitration agreement cannot be a take-it-or-leave-it offer, meaning that a prospective employee would have risked losing the opportunity if they refused to sign.

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