Lisa P. Mak Wins Appeals Court Decision Allowing Client to Pursue Harassment Claims in Court Instead of Forced, Private Arbitration

Lisa P. Mak Wins Appeals Court Decision Allowing Client to Pursue Harassment Claims in Court Instead of Forced, Private Arbitration

On December 13, 2018, the California First District Court of Appeal affirmed the ruling of the San Mateo Superior Court that our client, plaintiff Marisol Gutierrez, was not required to submit her sexual harassment claims against her former employer to forced arbitration.

Marisol Gutierrez began working for Flying Food Group LLC (FFG) in food and liquor assembly in the fall of 2012. At that time, Ms. Gutierrez joined Unite Here! Local 2, the union that represented certain classes of FFG employees according to the collective bargaining agreement between FFG and the Union. Ms. Gutierrez alleged that during her employment at FFG, she was subjected to verbal and physical sexual harassment at work by male supervisors and co-workers.

In May 2015, Minami Tamaki filed a lawsuit on behalf of Ms. Gutierrez in San Mateo Superior Court against FFG for sexual harassment and hostile work environment, failure to prevent sexual harassment, and national origin discrimination, all in violation of California’s Fair Employment and Housing Act (FEHA).

Immediately after Ms. Gutierrez filed this case, FFG filed a petition to force the case into private arbitration based on the Union’s collective bargaining agreement. In private arbitration, legal claims are usually decided by a sole arbitrator without a jury trial, and the decision would be binding with limited grounds for appeal. The trial court agreed with Ms. Gutierrez that she did not have to arbitrate her statutory discrimination claims because the arbitration language was not clear and specific enough in the collective bargaining agreement. FFG immediately appealed the trial court’s ruling, delaying the case for another two years.

The appellate court unanimously upheld the lower court’s order in Ms. Gutierrez’s favor. Specifically, the appellate court followed the United States Supreme Court’s decision in Wright v. Universal Maritime Service Corp. and held that in the context of a union collective bargaining agreement, the requirement to arbitrate statutory discrimination claims must be clearly and unmistakably stated, including specifying the statutes that will be subject to arbitration. The appellate court also held that the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, favoring enforcement of arbitration agreements under the Federal Arbitration Act, did not apply here because the collective bargaining agreement did not include any agreement to arbitrate statutory discrimination claims. This ruling means Ms. Gutierrez can pursue her statutory harassment claims in court instead of a forced, private arbitration.

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