AB 51: Inspired by #MeToo

On Oct. 10, Gov. Gavin Newsom signed Assembly Bill 51 into law, which prohibits employers from requiring employees to agree as a condition of employment to mandatory pre-dispute arbitration of claims arising under the California Fair Employment and Housing Act and related employment statutes. The act, codified in Government Code Section 12953 and California Labor Code Section 432.6, took effect Jan. 1. The Consumer Attorneys of California co-sponsored the legislation along with California Labor Federation AFL-CIO.

Mandatory arbitration agreements are used by employers to require employees, as a condition of employment, to agree to arbitrate workplace disputes rather than being able to resolve these matters in court. For example, when a worker is paid less than she is owed, is fired for being pregnant, or is underpaid because of her race, her employer may have mandated that as a condition of her employment she waive her right to have her claim heard in a court of law -- instead, she is locked into a process that favors the employer, a process where employees are less likely to win their cases, and where arbitrators award much less money than a jury would award in court.

As a result, being forced to sign an arbitration clause in employment contracts plays a huge role in silencing women who complain about labor violations, discrimination, and specifically, sexual harassment. Sexual harassment is any unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature in the workplace. Sexual harassment can occur in a variety of circumstances, including when the harasser is the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee. The victim does not have to be the person harassed but could be anyone affected by the offensive conduct. This type of conduct explicitly and/or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, and/or creates an intimidating, hostile, or offensive work environment.

Many women believe that due to the arbitration clause and the unequal power dynamic with their employers, complaining about sexual harassment would essentially do worse than good. According to an Economic Policy Institute research by Cornell professor Alexander J.S. Colvin, women and African-Americans are more commonly subjected to mandatory arbitration than other workers, with the practice especially widespread in California, Texas and North Carolina. The report also states that 57.6% of women working in the private sector are subjected to mandatory arbitration.

However, in the era of the #MeToo Movement and now with the passage of AB 51, many women are inspired to come forward and describe the sexual harassment they experienced at well-known companies like Uber, Fox News and the Weinstein Company. With widespread media coverage on the #MeToo Movement and support from prominent celebrities, laws like AB 51 are bound to pass muster and become the new norm.