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Judge Rules Sexual Harassment Claims NOT Subject to Arbitration

#METOO ALERT! On March 8, 2019, there was a huge ruling in Houston – that forced arbitration of sexual harassment claims is void as against public policy. This watershed opinion opens the door for sexual harassment and sexual assault victims statewide to avoid the forced confidential arbitration system where their claims never see the light of day, and take their claims to court where they are public and where they are decided by a jury of your peers.

In Bambace v. Berry Y&V Fabricators, LLC, Stefani Bambace alleged that she worked in a sexually charged and hostile work environment, including “being subjected to sexually explicit images from her employer, sexual advances, and groping.” According to her Petition, she complained to Human Resources about the harassment and was fired three weeks later. She filed a lawsuit alleging violations of Chapter 21 of the Texas Labor Code, specifically that the Defendant intentionally engaged in unlawful sexual harassment, discrimination, and retaliation.

Like more than half of non-unionized American workers, Bambace was subject to an employer promulgated arbitration agreement. These arbitration agreements are often snuck into the packet of materials employers give employees on their first day of employment to sign, along with required documents like I-9 forms. In our experience, these arbitration agreements are rarely negotiated or even discussed. And, if the employee refuses to sign them on that first day, the expectation is they will be fired on the spot. The arbitration agreement, never shown to the employee prior to day one, is a condition of keeping the job. That is why they are called forced arbitration agreements.

In a well-reasoned opinion in Bambace, the Court held that the arbitration agreement, which required the Plaintiff to litigate sexual harassment claims in confidential and binding arbitration, violated public policy, injured the public good, and was therefore void and unenforceable. Critically, the Court further rejected Defendant’s argument that the arbitrator, not the Court, should determine whether the sexual harassment claims were subject to arbitration. The Court held that the judge, not the arbitrator, gets to decide whether the terms of the arbitration agreement are contrary to public policy. #endforcedarbitration#timesup#metoo