It’s not like we didn’t tell you so, cuz we did!  Just last year, we predicted that the latest assault on employer arbitration rights had the potential to destroy arbitration everywhere in the country. Is Arbitration Becoming “Just Somebody That We Used to Know”? Well, it’s happening, and the most recent salvo (not surprisingly) comes from the Golden State.

On Monday, a California appellate court decided that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the “EFAA”) precluded arbitration of a case (or any part of it) in which the plaintiff claimed sexual harassment and sexual assault – even though the other claims she asserted did not even remotely relate to the alleged sexual harassment or assault.  Doe v. Second St. Corp., 2024 WL 4350420 (Cal. Ct. App. Sept. 30, 2024).

Doe filed the lawsuit against her former employer (The Huntley Hotel) and two of her former supervisors, alleging sexual harassment/assault and discrimination that occurred both before and after the EFAA’s effective date.  The court first held that the EFAA applies to “continuing violations” that occur at least in part after the statute’s effective date of March 3, 2022.  Next and perhaps most stunningly, the court concluded that the EFAA barred arbitration not only of the sexual harassment and assault claims, but also of every other claim plaintiff had alleged, including a variety of California wage and hour claims that had nothing whatsoever to do with sexual harassment or assault (e.g., failure to pay the minimum wage and overtime, failure to provide meal and rest breaks, failure to provide accurate pay stubs, etc.). 

Relying on recent court opinions from other jurisdictions, the court held that where a plaintiff pleads a claim of sexual harassment or sexual assault, the entire case (and, therefore, all claims alleged in it) is immune from arbitration. Indeed, the court found that “because all of the causes of action are asserted by the same plaintiff, against the same defendants, and arise out of plaintiff’s employment by the hotel” the case “relates to” a “sexual harassment dispute.”

Left undecided is what happens if a sexual harassment or assault claim is without merit or even frivolous and ends up being dismissed by the trial court.  Once the harassment/assault claim disappears (along with the immunity from arbitration that it confers), can the other claims then be compelled to arbitration?  One such case litigated by our firm in New York says yes: Yost v. Everyrealm, 657 F. Supp. 3d 563, 591 (S.D.N.Y. 2023) (“the Court grants the Everyrealm defendants’ motions to dismiss the sexual harassment claims … and holds that, with the dismissal in full of these claims, the EFAA no longer has any bearing on the pending motion to compel arbitration in this case.”). But, with a lack of additional authority on the issue thus far, only time will truly tell…

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the Co-Chair Emeritus of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law…

Anthony J. Oncidi is the Co-Chair Emeritus of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.

Photo of Hayden F. Bashinski Hayden F. Bashinski

Hayden F. Bashinski earned his J.D. cum laude from the Cumberland School of Law, Samford University, where he was the Student Materials Editor for the Cumberland Law Review. Prior to attending law school, Hayden attended the University of Mississippi, and spent time studying…

Hayden F. Bashinski earned his J.D. cum laude from the Cumberland School of Law, Samford University, where he was the Student Materials Editor for the Cumberland Law Review. Prior to attending law school, Hayden attended the University of Mississippi, and spent time studying abroad at the London School of Economics.

Hayden focuses his practice on labor and employment law matters. He has experience defending clients in matters pending before administrative personnel boards and agencies, the AAA, JAMS, FINRA, and state and federal courts, including single-plaintiff lawsuits and class and collective actions. In addition to his litigation practice, Hayden regularly advises clients regarding employee policies and personnel decisions. Hayden also assists clients in conducting workplace investigations related to discrimination, harassment, and retaliation.