No mandatory arbitration of sexual orientation harassment claims
The ruling effectively narrows the kinds of disputes employers may require their employees to arbitrate
Does harassment in a California workplace based on sexual orientation constitute “sexual harassment?” In Decloedt v. Radnet Management, Inc., a Los Angeles-based panel of the California Court of Appeal recently concluded that it does. That, in turn, meant federal law barred Radnet Management from requiring former employee Trevor Decloedt to arbitratehis claim of sexual orientation harassment instead of pursuing it in court.
The law
The federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 makes a pre-dispute agreement to arbitrate claims alleging “conduct constituting a sexual harassment dispute” unenforceable. EFAA defines “sexual harassment dispute” as a “dispute relating to conduct that is alleged to constitute sexual harassment under applicable federal, tribal, or state law.”
EFAA is a statutory exemption to the Federal Arbitration Act which generally makes arbitration agreements in any “transaction involving commerce” enforceable. That includes most employment relationships.
EFAA and sexual orientation harassment claims
Radnet Management moved to compel Decloedt to arbitrate his claims. The company argued Decloedt’s claim of sexual orientation harassment was not a claim of sexual harassment under California’s Fair Employment & Housing Act, making EFAA inapplicable. The court of appeal disagreed
.The court of appeal relied on the U.S. Supreme Court’s 2020 Bostock v. Clayton Cnty ruling. Bostock held that the prohibition of discrimination “because of … sex” in Title VII, the federal employment anti-discrimination law, extends to discrimination because of an employee’s homosexuality. Bostock’s “logic applies with equal force when determiningwhether an employer who has harassed an employee because of his or her homosexuality has engaged in harassment because of the employee’s sex. For that reason, we conclude sexual orientation harassment is a form of harassment because of sex under FEHA.”
Radnet Management argued that FEHA differentiates sex-based and sexual harassment from harassment based on other characteristics such as sexual orientation, race, and disability. Radnet Management pointed to Government Code section 12940(j)(4)C) of FEHA that says “‘harassment’ because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.” The company argued the omission of sexual orientation from that list means that sexual orientation harassment is distinct from sexual harassment, just as racial and disability harassment are distinct from sexual harassment.
In rejecting that argument, the court underscored that the word “includes” is a term of expansion, not limitation. “We do not agree that by omitting other characteristics inextricably intertwined with an employee’s sex, the Legislature intended for those omitted characteristics to be excluded from” FEHA’s proscription of harassment because of sex.
Click here to read the full article written by SCMV Shareholder Dan Eaton and published in The San Diego Union-Tribune.