APPLICATION OF THE ENDING FORCED ARBITRATION ACT

Thanks for clicking through to read more about why Jane Doe v. Second Street Corp. is such an important case.

1. Impact of EFAA: The EFAA significantly alters the enforceability of arbitration agreements in sexual harassment cases, emphasizing the plaintiff’s choice to litigate rather than arbitrate.
2. Continuing Violations Doctrine: The court upheld that ongoing harassment claims can accrue at the date of the last act contributing to the hostile work environment, aligning with the continuing violations doctrine.
3. Whole Case vs. Individual Claims: The ruling clarifies that if any claim in a case relates to a sexual harassment dispute, the entire case is exempt from arbitration, not just the specific claims.
4. Amendments Allowed: The court affirmed the permissibility of amending complaints, emphasizing the judicial discretion afforded to trial courts to manage case proceedings.

This case highlights the role mediation can play in resolving tough sexual harassment cases. From the employer’s perspective, the arbitration agreement will likely not be enforceable. Given the increasing difficulty of obtaining summary judgment in these cases in California, employers will be confronted with the expense and risk of proceeding to a jury trial in emotionally charged cases. From the plaintiff’s perspective, mediation continues to afford an opportunity to bring closure more quickly than litigating the case for several years during which time the plaintiff will be forced to relive the events giving rise to the lawsuit. As this case demonstrates, even when a motion to compel arbitration is denied, the employer can delay the case for at least a year by appealing the denial of the motion. Now that it’s clear the case will proceed in court rather than arbitration, the parties in Jane Doe v. Second Street Corp. would be well-advised to attempt to resolve the matter through mediation.

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This case highlights how convoluted and drawn-out employment discrimination cases can become. Each phase of litigation brought new challenges, including the assessment of damages and attorney fees, underscoring the intricacies involved in high stakes employment law.

Simers’ team initially sought substantial legal fees, which the court drastically reduced.

The ruling reinforced the principle that even successful plaintiffs in discrimination cases under FEHA are subject to reasonable scrutiny regarding attorney fees and costs. In this case, overlitigation and excessive billing practices were penalized, reducing the final award significantly.

FINAL RESULT

The jury’s final verdict of $1.25 million matched a settlement offer made before the third trial. This emphasizes the risks of pursuing protracted litigation when a reasonable settlement offer is on the table. In this case, Simers did not secure a more favorable judgment than the pre-trial offer, impacting his ability to recover post-offer legal fees.

But here’s the kicker: T.J. Simers died on June 2, 2024, at the age of 74 of glioblastoma, an aggressive form of brain cancer that took the lives of John McCain, Ted Kennedy, Beau Biden, Johnny Cochran, and, on a personal note, the husband of a close high school friend of mine.

How often do we hear or say, “life’s too short” or “carpe diem”?

MEDIATION WORKS

Whether you represent employers or employees, do your client a favor: Mediate the case early and work hard to get it resolved. In the end, everyone benefits.

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The Ninth Circuit disagreed with the trial court and found that online social media content can constitute workplace harassment. The court rejected the notion that “only conduct that occurs inside the physical workplace can be actionable, especially in light of the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace.” The court further warned that “[s]ocial media posts are permanently and infinitely viewable and re-viewable by any person with access to the page or site on which the posts appear” and that “even if discriminatory or intimidating conduct occurs wholly offsite, it remains relevant to the extent it affects the employee’s working environment.”  The Ninth Circuit sent the case back to the trial court.

This is a classic case of bad facts make bad law. The number of posts, the graphic and patently offensive content, the number of followers from the workplace, the specific references to the workplace and to individuals (at least by position), and management’s laissez-faire response all combined to render the Ninth Circuit’s conclusion in this case predictable.  Although employers generally are not responsible for conduct that occurs in a non-work-related context, they may be liable when the conduct has consequences in the workplace and therefore contributes to a hostile work environment.

For me, the unanswered question in this case is whether the Lieutenant who started the account was ever disciplined. It is worth noting that this guy was a member of the Bureau’s Special Investigative Services unit, responsible for investigating suspected violations of law and prison policy by both inmates and staff. The title of his account is 8_and_hitthe-gate.  Apparently “eight and hit the gate” is a well-known expression among prison employees for putting in your time on your shift and getting the heck out.  How about the management staff who did nothing? The facts of this case arose back in 2020 and the case has just been remanded to the District Court. Sounds like it’s ripe for mediation. 

What do you think of this case?  Do you agree with the appellate court or was Judge Phillips correct in her narrow interpretation of what constitutes workplace harassment? Let me know!

One of the aspects of this case that I found fascinating has nothing to do with the law. In fact, it’s more People magazine than legal analysis. The Schillers were represented in this case by the nationally-renown firm of Boies Schiller Flexner. Of course, David Boies is a household name, dating back to his days defending CBS in the defamation suit brought by General William Westmoreland, his victory over Microsoft in an anti-trust trial in which Boies represented the U.S. Government, his unsuccessful representation of Democratic presidential candidate Al Gore in Bush v. Gore, and countless other high-profile cases. Boies’s long-time friend and partner, Jonathan Schiller, is the father of Zachary Schiller who, according to Wikipedia, is a film producer whose production credits include: the Escape Plan series, Midnight Sun, The Babysitter, and Countdown. Jonathan Schiller’s other son, Joshua, is married to Melissa Siebel Schiller, sister of Jennifer Siebel Newsom, California Governor Gavin Newsom’s wife.

So, maybe the Schillers got the family discount to be represented by this legendary law firm in a dispute with their nanny.

Thanks for clicking through to learn more about this  interesting case.

The Ninth Circuit disagreed and vacated the District Court’s order dismissing this claim. In doing so, the Court observed that the employer’s arguments “hinge on an ‘equal opportunity harasser’ defense that we simply do not countenance.  An employer cannot find a safe haven by embracing intolerable, harassing conduct that pervades the workplace.”

What do you think of the holding? The Ninth Circuit claimed that this was a case of first impression, but I see this kind of fact pattern repeatedly in the work that I do. It’s not usually music blasting from commercial speakers at deafening decibels. Instead, it’s music played in a breakroom or an employee singing loud enough for coworkers to hear. Should the playing or singing of songs that use racial or gender epithets, refer to sexual acts in vulgar terms, or use other offensive (to many if not all employees) words be the basis for a hostile environment claim?

If you don’t think so, this does not mean you approve of the conduct or, if you are an employer, lack any ability to stop it. Certainly, no employer is required to allow this type of conduct to go on in the workplace. Employer policies can and should prohibit using epithets and offensive language in any context. It is, however, a different question to ask whether allowing such music to be played in a warehouse should be the basis for a claim which requires that the offending conduct occur “because of sex.”  Are you convinced by the Ninth Circuit’s rationale or not? Happy to discuss this, please feel free to email me.

Do you have a case that you’d like to settle quickly? I still have some availability in late March and early April. In addition, dates frequently open up as scheduled arbitration hearings go off calendar almost every month. Check my calendar and book instantly.

Thanks for clicking through to learn more about this interesting case where a lawyer’s conduct cost him and his client nearly $500,000.

Perhaps you noticed that the newsletter content was a bit different from my past newsletters. That’s because the case was written entirely by CHAT PDF. I simply uploaded a PDF of the case into the platform and asked for a 200-word newsletter summarizing the key points of the case. The summary is not too bad. Wouldn’t you agree? I’d like to think I can’t be replaced entirely by AI. So here are a couple points that CHAT PDF missed:

The plaintiff prevailed only on his claim for failure to engage in a good faith interactive process and was awarded about $130K in damages. The jury found for the employer on disability discrimination, retaliation, failure to accommodate, and failure to prevent discrimination.

The plaintiff then sought fees of approximately $1.193 million plus a multiplier of 1.75 for a total fee request of about $2.09 million. The court corrected some arithmetic and then applied a 1.2 multiplier for an initial fee award of about $1.145 million.

But the court then applied a negative multiplier of .4 reducing the fees awarded to about $686 thousand. Here is part of what the trial court wrote after quoting two and one-half pages of counsel’s e-mail messages: “[counsel’s] incivility was not only directed to opposing counsel; it was also directed to the Court . . . ‘Plaintiff’s counsel’s tone of voice (which was not reflected in the Court Reporter’s record) was both belittling and antagonistic; at times it verged on the contemptuous. Plaintiff counsel’s ad hominem attacks were unnecessary for the zealous representation of his client.”

The appellate court affirmed the fee award. So, being a total jerk cost the lawyer and his client nearly half a million bucks. Undoubtedly, this case will be cited repeatedly in motions for sanctions and oppositions to fee requests. Don’t give opposing counsel any grist for this mill. Be professional. Take the high ground. Don’t personalize your client’s dispute so that it becomes your dispute.

Do you have a case that you’d like to settle quickly? I have some open dates at the end of this year and in January. Dates are always opening up as scheduled arbitration hearings go off calendar almost every month. Check my calendar and book instantly.

So, was Judge Bowick disqualified?

The appellate court noted that “a judge faced with a potential ground for disqualification ought to consider how his participation in a given case looks to the average person on the street.” (Jolie v. Superior Court of Los Angeles County (2021) 66 Cal.App.5th 1025, 1039-1040). This is an objective standard. If a reasonable person would entertain doubts about the judge’s impartiality, disqualification is required. The court also pointed out that the burden on a party seeking disqualification is “heavy” and affirmed the trial court’s decision denying defendant’s motion to disqualify Judge Bowick.

There are a lot of disputed facts about the interaction between the two judges. Here’s a link to the case.

As an arbitrator in California, I am required to answer about 30 questions on a disclosure form each time I accept an appointment. One of those questions is the catch all: “Are you aware of any facts that would cause a reasonable person to question your ability to be impartial?” As I stated at the beginning of this piece, I know the attorneys involved here, so I am not going to comment. How about you, though? Would you have disqualified Judge Bowick if you were on the appellate court?