Assembly Member Levine Presents Employee Rights Act of 2006

AB 2371 Would Allow Discriminated-Against Employees a Fair Hearing in Court

Under current law, an employer can require an employee to sacrifice their Constitutional right to a jury trial, in order to get or keep their job. The contracts that force this sacrifice are referred to as “arbitration agreements.” However, these agreements are frequently forced coercion on the part of the employer, leaving the employee with a no-win situation – they either have to protect their job or protect their right to a jury trial.

“AB 2371 aims to level the playing field between workers who file Fair Employment and Housing Act (FEHA) complaints and their employers,” Assembly Member Levine said. “It allows employees to decide whether or not to use an arbitrator, free from any other concerns. This is a needed change because for too long, Californians who are most likely to be forced to file a FEHA claim are the same people most harmed by the status quo.”

AB 2371 expands workers’ rights by compelling employment despite a worker refusing to forfeit the right to have a discrimination suit heard before a jury. This legislation is of critical importance for all Californians, but especially for women, minorities, senior citizens, and other groups who are more likely to face FEHA violations.

The opportunities for abuse in mandatory arbitration cases are startling. An employer, with far more resources than their employee, will often bear the entire cost for hiring and paying an arbitrator. Then, the arbitrator is supposed to render an unbiased decision between the defendant, who provides his income, and the plaintiff, who is seeking redress from the person who provides his income.

At today’s hearing, Sherri Warner testified on behalf of the bill. Three years ago, she lost her discrimination and wrongful firing suit in mandatory arbitration. A San Francisco arbitrator not only charged her nearly $16,000 for his time, but he also ordered her to pay her opponent’s legal fees of more than $207,000.

The fee award would probably not have been allowed in court, and it forced Ms. Warner into bankruptcy.

“Being repeatedly sexually harassed by my boss was one of the most humiliating experiences of my life,” Ms. Warner stated. “The indignity was made even worse when I was forced to appear before an arbitrator who was completely unsympathetic to my case. In the end, the arbitrator forced me into bankruptcy because he decided that I should be responsible for paying all the costs for the hearing. I had no chance to appeal, and was left with nowhere to turn. There are a lot of other women out there like me, and we deserve better.”

The current system harms those who have already been harmed by the indignity of workplace discrimination. It disadvantages the 1,008 women who have filed FEHA complaints in cases related to pregnancy. It hurts the 653 people who have claimed workplace discrimination because they needed to care for their families. It negatively impacts people of every race, religion, and orientation. And most severely, the current system does not offer justice to the 3,845 Californians who felt victimized by sexual harassment in the workplace.

“AB 2371 will not create a perfect work environment,” Levine added. “But it will ensure that every working man and woman in California has their day in court when they feel they have been wronged in the workplace.”