You may have a situation where not only you have been the victim of sexual harassment in the workplace, but your coworkers may also have had other negative experiences with the same employer. Can all of you jointly sue the employer for workplace sexual harassment in what is called a class action or collective action?

It depends. If you and your coworkers each have an employment contract with the offending employer, the fine print may contain an arbitration clause that prohibits bringing a class action against your employer. What does having an arbitration clause mean? It means that any dispute you have with your employer must be resolved one-on-one in a private setting by a neutral arbitrator or panel of arbitrators. The arbitrator(s) may be selected by your employer or jointly by you and the employer from a list of arbitrators. You may have given up the right to file a complaint in state or federal court, where a jury of your peers decides the merits of your claims. Theoretically, it is more favorable to have your claims resolved by a jury than an arbitrator or arbitrators selected by your employer.

The Epic Systems Corporation v. Lewis Decision

The Supreme Court of the United States in Epic Systems Corporation v. Lewis, recently considered whether employment contracts that require one-on-one arbitration for resolving disputes are enforceable if their effect is to prevent several employees from jointly suing their employer. The opinion began with the following questions:

Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective        ac­tions, no matter what they agreed with their employers?

The employees involved in the Epic Systems case argued that the National Labor Relations Act (“NLRA”), which secures employees’ right to organize unions and bargain collectively, gave them the right to collective action. The employers argued that the Federal Arbitration Act permitted a bar to collective legal action. The Supreme Court, in a 5-4 opinion penned by Justice Neil Gorsuch, held that the NLRA does not give employees a right to class actions. Rather, the Federal Arbitration Act provides that arbitration agreements must be enforced according to their terms—including terms providing for individualized arbitration.

Fatima Goss Graves, President and CEO of the National Women’s Law Center, released the following statement on the day the Supreme Court issued its opinion in Epic Systems:

Fatima Goss Graves, National Women Law Center’s President and CEO

“Today, the Supreme Court has taken away a powerful tool for women to fight discrimination at work. Instead of banding together with coworkers to push back against sexual harassment, pay discrimination, pregnancy discrimination, racial discrimination, wage theft, and more, employees may now be forced behind closed doors into an individual, costly – and often secret– arbitration process. This will stack the deck in favor of the employer. For all working people, the right to join a class or collective action is an indispensable tool to advance fairness, justice, and equality at work. For women workers, however, the stakes are particularly high. Women often face discrimination that is difficult to detect, like pay discrimination, or suffer from sexual harassment and face retaliation for reporting it. As mandatory arbitration is forced on growing numbers of employees as a condition of employment, the Supreme Court should strengthen rather than undermine the rights of workers to challenge insidious and often widespread civil rights violations.”

In Florida, if you are a non-union employee, have an employment contract, or mandatory arbitration is a condition of your employment, then your ability to sue your employer along with your coworkers for workplace sexual harassment is limited by the Epic Systems decision. Not all arbitration clauses are written the same and some companies are e-mailing their arbitration agreement to employees and telling them that if they continue to be employed there, they are deemed to have accepted the terms. If you and your coworkers are experiencing sexual harassment, you should seek legal counsel to determine whether you are restricted from raising a workplace sexual harassment claim as a class action. We are here to help you figure out the available legal avenues if you find yourself in this situation.

So, the last time I discussed the 15 Key Steps employers should take, according to AllBusiness.com, to respond to sexual harassment claims, I mentioned “lawyering up” and being “fair” (as well as, perhaps more importantly, “appearing fair.”)

Minimizing access to information

I want to pick up with one theme I briefly touched upon the last time, an idea either implicitly or explicitly expressed in most of the 15 employer-tips: in responding, the employer should (a) minimize creating potentially damaging evidence and (b) make it more difficult for the victim to have access to potentially relevant information. Two examples illustrate these goals.

First, in Step #5 on “taking appropriate action,” the attorney author throws in, almost as an aside, that

[i]t is important to document the discipline carefully, although specifics about the investigation should not go into personnel files.

(emphasis added) I am sure that, depending upon who you ask, there are several reasons for this; and, perhaps some of them are even legitimate. But, surely one of the real reasons for this advice is that the personnel files are much easier for employees to access and, therefore, they would be easier to provide to a plaintiff’s attorney to assist him or her in evaluating the case. Keeping the investigation findings separate from the personnel file adds another layer of protection from future discovery. I am not saying the investigation and underlying material won’t be discoverable – it very well could be – but keeping it separate from the personnel file adds a further complication; a future plaintiff’s attorney must first determine the materials exist and then obtain them.

Minimizing damaging evidence

And second, tip #10 is disarmingly honest and aims at minimizing damaging evidence: “Be careful with texts and email.”

The evidence code contains a so-called “hearsay exception” for an “excited utterance,” something that someone blurts out in the moment, when emotions are running high (e.g. right after a car crash). [Sidebar: for non-lawyers, hearsay is lawyer-speak and means that the rules of evidence often prevent witnesses telling the judge or jury what another person said to them.] If you are curious, the excited utterance exception is § 90.803(2) Fla. Stat. and can be found here. The idea behind this “excited utterance” exception is that people are more likely to be truthful in the moment, when they have not had time to reflect on the situation and decide what is in their best interest to say.

This is similar to what the author is trying to get employers to minimize. She is telling the bosses-of-the-world to hold their fire on emails and text messages in the hours and days after the victim makes his/her allegation, or after the situation first comes to their attention. Put cynically, the advice is that the employer might be too honest in the moment, that he/she might reveal too much. So, the advice is to pick up the phone and refrain from putting anything in writing, especially when texts and emails are so easy to shoot off and will then be out there, as a great record for plaintiff’s attorneys to mine when ligation ensues.

Why am I telling you all this? Well, for one thing it’s important to realize what advantages (both structural and tactical) employers have, and to develop an awareness for them. After all, how can you hope to address and overcome them if you don’t know they exist. Also, every once-and-a-while what appears like an advantage for the other side can turn out to be, if not a liability, then at least an opening to exploit.

Of the many advantages employers have over victims of sexual harassment, perhaps none matches the power to compel victims to arbitrate, for them to forgo the opportunity of a lawsuit in state or federal court.

Sidebar: if you don’t know, arbitration is a kind of private court, where one (or more) arbitrators act as quasi judges. Often, employment contracts will have language in them requiring the employees to arbitrate work-related disputes, including allegations of sexual harassment. Depending upon which side you ask, you will get very different reactions to whether arbitration is a good thing. According to the American Arbitration Association, arbitration is “faster and more cost effective than litigation.” Unsurprisingly, employers generally agree with this assessment; after a few beers they might even admit arbitration, on balance, strongly favors employers. But, even if we accept the speed-cost premise (for argument’s sake), sexual harassment victims seeking redress may not benefit from speed and efficiency.

The attorneys general of every single U.S. State seem to think so anyway. In a February 12, 2018 letter to Congress – spearheaded by our very own Attorney General Pam Bondi – the attorneys general unanimously concluded that

[w]hile there may be benefits to arbitration provisions in other contexts, they do not extend to sexual harassment claims.”

Why? Because arbitrators “are not positioned to ensure that such victims are accorded both procedural and substantive due process.” Now, that is quite a statement coming jointly from representatives of deep-red (aka employer-friendly), as well as blue states. The letter also highlights the deleterious effect that secrecy – many arbitrations are secret – can have on society at-large because the scope of the problem is swept under the proverbial rug.

So, will we see some change? I frankly have no idea . . . the Arbitration Fairness Act of 2018 was introduced in Congress last month. The bill purports to prohibit arbitration in employment, consumer, antitrust and civil rights disputes. But, as even casual observers of the congressional sausage factory will tell you: it is a long way from bill to law. The #metoo movement was clearly the impetus for the bill. We will just have to see if the will remains when the topic of sexual harassment has faded from the headlines.

Una entrevista con Carmen Arce.

Mientras el mundo escucha las denuncias de acoso sexual en Hollywood, las voces de las mujeres inmigrantes y sus experiencias con relación a este tema no han estado al frente de la controversia. Las mujeres inmigrantes que han hablado de este tema lo han hecho corriendo un gran riesgo personal, a pesar de que sus casos son mucho más comunes que los de las actrices de Hollywood.  Decidí adentrarme en este tema y me senté a conversar con Carmen Arce, fundadora de Arce Immigration Law, P.A., en Miami, Florida.  Carmen Arce es una abogada certificada por el Florida Bar como una experta en leyes de inmigración y representa a individuos, familias, empleadores, y empleados a través de los Estados Unidos y en el exterior, en todas sus necesidades de inmigración.

Las Mujeres Inmigrantes Son Especialmente Vulnerables Al Acoso Sexual

Arce cree que las mujeres inmigrantes son especialmente vulnerables al acoso sexual sin importar que sean beneficiarias de una visa de trabajo, una solicitud a través de su esposo, o que sean empleadas domésticas.  Arce ha notado que por lo menos en Miami, muchas

inmigrantes de America Latina dan por hecho que van a tener que lidiar con el acoso sexual.”

A pesar de que las mujeres inmigrantes no deben esperar ser víctimas de acoso sexual, “ellas están acostumbradas al acoso sexual en sus países de origen, y no pestañean cuando el mismo ocurre en los Estados Unidos.”

Carmen Arce

Para empeorar la situación, muchas mujeres inmigrantes no saben que hay leyes en los Estados Unidos que las protegen del acoso sexual y el abuso, inclusive cuando el abusador o la víctima no son ciudadanos de los Estados Unidos. “No creo que ellas saben sobre las leyes y tampoco creo que muchas mujeres inmigrantes tan siquira piensan que el acoso sexual es inapropiado.  No se sienten cómodas con el mismo, pero desafortunadamte están acostumbradas a esto.”  Arce cree que las mujeres inmigrantes no sólo están sujetas al acoso sexual de parte de sus empleadores, pero también de parte los clientes de sus lugares de trabajo, “lo he visto en los lugares de trabajo – lo he visto en pequeñas cafeterias y restaurantes donde los jefes o clientes se dirigen a ellas en forma degradante, pero ellas no toman como ofensa comentarios como ‘wow, te ves bien, mami.’ Yo no quiero que me digan “mami” y no creo que es muy apropiado.”

Cambios Culturales Son Necesarios En Los Lugares De Trabajo

Arce cree que las presiones culturales y sociales que hacen ver al acoso sexual como algo aparentemente acepado por la cultura cambia con las “noticias más recientes que hablan de este tema y de que esto no está bien, con más mujeres defendiéndose a sí mismas, y más hombres defendiendo a las mujeres en sus respectivos lugares de trabajo diciéndose ‘hey, eso no es correcto – no vamos a sexualizar a nuestras empleadas.” Como la empleadora que es, Arce pone el ejemplo en su firma y dice que en una firma pequeña, “uno establece las reglas dando el ejemplo.” Arce no “dudaría en hablar con alguno de sus empleados” si ella llegara a ver o a eschuchar algo inapropiado. Arce tiene la razón – la Comisión de Igualdad de Oportunidades de Empleo (Equal Employment Opportunity Commission (EEOC) en Ingles) dice que la “base de una estrategia de prevención en contra del acoso sexual es el compromiso consistente y demostrado de los líderes de la compañía en crear y mantener una cultura de cero tolerancia al acoso sexual.”  Como muchos empleadores no van a correr sus negocios como lo hace Arce, los trabajadores inmigrantes pueden conseguir ayuda del EEOC.    En un caso reciente, el EEOC llegó un acuerdo de $582,000 a favor de ocho inmigrantes de México y Centro América que fueron físicamente y verbalmente abusados sexualmente por un gerente de una lavandería en la ciudad de Suffolk, Virginia.

Que Pueden Hacer Las Mujeres Inmigrantes Si Sufren Abuso Sexual En El Trabajo?

Los inmigrantes están protegidos del acoso sexual y la discriminación laboral por leyes federales y estatales de derechos civiles, las cuales les permiten presentar cargos por abuso sexual y discriminación de género y origen. En un caso reciente, el EEOC obtuvo de manera éxitosa la autoridad de emitir un citatorio para un empleador en un caso de discriminación presentado por un trabajador sin documentos. Las Mujeres inmigrantes también deben de conversar con sus abogados sobre la Visa U, la cual es una visa especial para víctimas de ciertos tipos de crímenes que cooperan con las autoridades. Si usted o alguien que usted conoce ha expermientado acoso sexual en su lugar de trabajo, es importunate que consulte con un abogado sobre sus derechos.

An Interview with Immigration Attorney Carmen Arce

As the world hears about sexual harassment in Hollywood, the voices of immigrant women and their experiences have not been at the forefront of the discussion. Immigrant women who have come forward have done so at great personal risk, but their experiences may be more common than those of Hollywood actresses. I decided to look into this and sat down with Carmen Arce, the founder of Arce Immigration Law, P.A. in Miami, Florida. Ms. Arce is certified as an immigration expert by The Florida Bar and represents individuals, families, employers, and employees throughout the U.S. and abroad in all their immigration matters.

Immigrant Women are Especially Vulnerable to Sexual Harassment

Ms. Arce believes immigrant women are especially vulnerable to sexual harassment regardless of whether they have an employer sponsored visa, a pending application through a spouse, or they work as a domestic employee. Ms. Arce has noticed in Miami at least, that many

Latin American immigrants almost take it for granted that they are going to have to deal with sexual harassment.”

Even though immigrant women should not have to expect it, “they are used to it in their home countries so they don’t even bat an eye about it when it happens in the U.S.”

Carmen Arce

To make matters worse, many immigrant women don’t know about laws in the U.S. that can protect them from sexual harassment and abuse, even when the abuser or victim is not a U.S. citizen. “I don’t think that they’re aware of the laws and I don’t think many immigrant women even think the harassment is inappropriate. They may not be comfortable with it, but they are used to it unfortunately.” Ms. Arce believes immigrant women are not just subject to harassment by their employers, but by customers as well, “I’ve seen it in the workplace – I’ve seen it in smaller coffee shops, restaurants, with their bosses and patrons calling them in a derogatory way, but they don’t take any offense to it saying things like ‘wow you’re looking good mami.’ I don’t want to be called mami and I don’t think it’s very appropriate.”

 

Cultural Changes Are Needed in the Workplace

Ms. Arce thinks the cultural and social pressures that make some of what appears to be cultural acceptance of harassment changes with “it being in the news that it’s not ok, more women standing up for themselves, more men standing up for women in the workplace and saying ‘hey, that’s not correct – we’re not going to sexualize our employees.’” As an employer herself, Ms. Arce sets the tone in her firm and says in a small firm, “you set the rules by your example.” Ms. Arce also “wouldn’t hesitate to talk to an employee” if she ever saw or heard something inappropriate. Ms. Arce is right – the Equal Employment Opportunity Commission (EEOC) states that the “cornerstone of a successful harassment prevention strategy is the consistent and demonstrated commitment of senior leaders to create and maintain a culture in which harassment is not tolerated.” Since many employers aren’t going to run their businesses like Ms. Arce, immigrant workers can get help from the EEOC. In one case, the EEOC secured a $582,000 settlement involving eight recent immigrants from Mexico and Central America who were physically and verbally sexually harassed by a Suffolk Laundry manager.

What Can Immigrant Women Do If They Experience Sexual Harassment at Work?

Immigrants are protected from sexual harassment and employment discrimination by federal and state civil rights laws and can file charges for sexual harassment, gender discrimination, and national origin discrimination. In a recent case, the EEOC successfully obtained the authority to subpoena an employer in a discrimination case filed by an undocumented worker. Immigrant women may want to speak with their immigration attorney as well regarding the U Visa, a visa for victims of certain crimes who cooperate with law enforcement authorities. If you or someone you know has experienced sexual harassment in the workplace, it is important to consult with an attorney about your legal rights.

While many claims of sexual harassment involve harassment by someone in a position of authority, the law also protects victims of sexual harassment by a co-worker.

If you believe that your co-worker is engaging in frequent, severe, and pervasive conduct that is physically threatening or humiliating, and it is interfering with your job performance, you should report it to your employer.  If your employer does not take sufficient action to put measures in place to stop the co-worker’s offensive conduct, you may have a claim for sexual harassment based on a hostile work environment created by the co-worker.

The Hostile Work Environment

There are certain standards to meet for you to have a valid hostile work environment claim against a co-worker.  When harassment is perpetrated by a co-worker as opposed to a supervisor or manager, the conduct complained of must be sufficiently severe or pervasive to alter the terms and conditions of the victim’s employment, and if the conduct is sufficiently severe or pervasive, the employer must have failed to take adequate action to remedy the situation.

To determine whether the co-worker’s conduct is sufficiently severe and pervasive to alter the terms and conditions of employment, courts look at four factors:

(1) the frequency of the conduct;

(2) the severity of the conduct;

(3) whether the conduct was physically threatening or humiliating; and

(4) whether the conduct unreasonably interfered with the employee’s job performance.

Do Flirting and Isolated Incidents Create a Hostile Work Environment?

Simple teasing or mere flirtation, offhand comments, and isolated incidents (unless extremely serious) do not make up a valid claim of sexual harassment. The offensive conduct must be experienced regularly. For example, in one case reported in Florida, four isolated incidents of a co-worker brushing up against the other and making inappropriate gestures was not severe or pervasive because the isolated incidents took place within the span of two and a half years and the conduct did not affect the victim in her work.

Even if a victim can establish that a co-worker’s conduct was severe, pervasive, frequent, and unreasonably interfered with his or her work, a victim still needs to establish that the employer did not address the victim’s complaints.  Once the victim reports the offensive conduct of the co-worker to the employer, the employer must take corrective action that is immediate, appropriate, and reasonably likely to stop the harassment.  For example, an employer that confronts the co-worker using an escalating pattern of discipline, gives verbal warnings, and changes the two co-workers’ work schedules to avoid their contact satisfies an employer’s obligation to take reasonable steps to stop the harassment.

Are you the victim of inappropriate conduct by a co-worker that happens on a regular basis? Have you reported it to your employer? How did the employer respond? We can help you in figuring out whether you have a claim for sexual harassment perpetrated by co-worker. You should feel safe in calling us to listen to your story.