Best Ohio Employment Discrimination Lawyer Response: What does an arbitrator do in gender discrimination cases? What do I do if my boss forces me to have sex with him or is constantly grabbing and touching me inappropriately? Should I report my boss for sexual harassment to HR?
Sex harassment is a form of gender discrimination. Just like other forms of discrimination, such as racial discrimination, religious discrimination, and national origin discrimination, Title VII of the Civil Rights Act of 1964 protects employees from discriminatory conduct or harassment that is based on a protected class. Ohio employee are further protected from such conduct under Ohio Revised Code § 4112.01, et seq. There are two types of sexual harassment: (1) quid pro quo sexual harassment, which is where the boss or manager trades sexual favors for tangible work benefits such as raises, promotions, or just getting to keep your job; and (2) sexually hostile work environment, which is where to workplace is allowed to become so sexually charged that it prevents an employee from properly doing his or her job.
As an active practicing employment law attorney, just when I think I’ve heard it all, a client comes in with a blood curdling, cringe-worthy story about a perverted boss that is sexually harassing subordinate employee. As an employee in Ohio, you may be wondering how the following topics could possibly relate to your employment:
- Forced oral sex act in a Burger King bathroom;
- Fox News CEO Roger Ailes;
- Miss America 1989; and
- Arbitration Agreements.
Keep reading and by the end of this employment law blog, the list above should make more sense.
Let’s start with an update on the topic of last week’s blog about Gretchen Carlson (former Fox News reporter and Miss America 1989) and her boss, Roger Ailes. As discussed in our blog, Carlson filed a complaint alleging that Ailes sexually harassed her during her employment at Fox. After Carlson’s complaint was filed – other women came forward with salacious stories about Ailes. In addition to sexual harassment, Carlson also alleged that Ailes switched her to an unfavorable time spot, failed to adequately advertise or market her show and refused to renew her contract in retaliation for her decision to rebuff his inappropriate sexual advances.
In response to Carlson’s complaints a few things have happened. On the practical side of the matter, Fox’s owners have been reported to have agreed to oust Ailes from his longtime position. Furthermore, from a legal standpoint, Ailes’ attorneys have filed numerous motions including removing the matter from a state court in New Jersey to a Federal Court in New Jersey, and requesting an additional transfer of venue to a Federal Court in New York, to either consolidate the matter with a pending motion in a federal New York to stay litigation and proceed with arbitration.
Basically, Ailes is trying to enforce an Arbitration Agreement drafted by Fox and signed by Carlson where she agreed to waive her right to sue in court and have a jury trial. Instead, Fox and Carlson originally agreed as part of her employment contract to have any employment disputes heard by a panel of three neutrals – called arbitrators.
Here’s where it could get tricky and also where we tie in the reference to Burger King. In Arnold v. Burger King, a female Burger King employee, Shannon Arnold, alleged that as she was cleaning the bathrooms one night at the end of her shift, her male supervisor cornered her and forced her to perform oral sex on him. At the beginning of her employment, Arnold had signed an arbitration agreement similar to the one signed by Carlson noted above. The Ohio Eighth District Court of Appeals‘ analysis of the agreement is helpful for our purposes here today.
To begin, the Court in Arnold started by noting that “Ohio’s public policy encourages arbitration as a method to settle disputes,” citing Schaefer v. Allstate Ins. Co., and the Ohio Arbitration Act, which is found at Ohio R.C. Chapter 2711. The Ohio Arbitration Act provides that a trial court, “shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement.” R.C. § 2711.02.
Additionally, the Court in Arnold held that there is a presumption in Ohio favoring arbitration but did not go as far as saying that arbitration will always be enforced by Ohio Courts:
As a result of Ohio’s pro-arbitration stance, courts indulge a strong presumption in favor of arbitration when the disputed issue falls within the scope of the arbitration agreement. Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 471, 700 N.E.2d 859 (1998); Taylor Bldg., 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, at ¶ 27. Ohio also holds that arbitration agreements are, “`valid, irrevocable, and enforceable, except upon grounds that exist at law or in equity for the revocation of any contract.’” Taylor Bldg. at ¶ 33, quoting R.C. 2711.01(A); Marmet, 565 U.S. ___, 132 S.Ct. at 1204, 182 L.Ed.2d 42.
Though guided by a strong presumption, Ohio also recognizes that principles of equity and fairness require that greater scrutiny be given to arbitration provisions that do not involve parties of equal sophistication and bargaining power.
The Court’s analysis does not end here. The problem with the agreement signed by Arnold was that it attempted to force Arnold to arbitrate “any and all disputes, claims or controversies for monetary and equitable relief arising out of or relating to your employment, even disputes, claims or controversies relating to events occurring outside the scope of your employment.” Id. The Court took it one step further and held that because the scope of the agreement was so broad in trying to encompass matter both related and unrelated to work it was unconscionable:
Inasmuch as the [Mandatory Arbitration Agreement] sought to include every possible situation that might arise in an employee’s life, the clause is substantively unconscionable as the arbitrator would be resolving disputes unrelated to employment. See, e.g., Drake v. Barclay’s Bank Del. Inc., 8th Dist. Cuyahoga No. 96451, 2011-Ohio-5275. It is ordinarily not within an arbitrator’s purview to determine whether one employee was raped by another.
Although Carlson does not allege that she was raped, an employee in Ohio who has signed an arbitration agreement could possibly be able to pursue his or her claims in a court instead of arbitration if he or she experienced any type of forced sexual encounter at work or other types of egregious behaviors that transcend average employment disputes so as to be considered outside the scope of employment.
As our employment discrimination attorneys have previously blogged about, in Ohio pursuant to Revised Code § 4112.02 and under federal law contained in Title VII of the Civil Rights Act employees are protected against employment discrimination, sexual harassment, and retaliation for reporting sexual harassment. (See Can I Be Fired Because I Complained About Discrimination?; Lawyer: What Is Retaliation For Reporting Sexual Harassment?; Who Can I Sue For Sexual Harassment? and What Can I Do If My Manager Is Sexually Harassing Me?) The best thing to do when confronted with an arbitration agreement, sexual harassment, or coercive or forced sex at work, is to seek counsel before it’s too late.
Sexual harassment is unlawful under Title VII of the Civil Rights Act of 1964 and similar Ohio laws. Sexual harassment is a form of gender discrimination. If you feel that you are being sexually harassed or are working in a sexually charged or hostile working environment, you should not wait to call the right attorney at (216) 291-4744 to schedule a free and confidential consultation. At The Spitz Law Firm, you will meet with a sexual harassment lawyer/hostile work environment attorney to find out what your legal rights are and the best way to protect them. Sexual harrassment is a form of gender discrimination, and employers should be held accountable if they discriminate against female workers in any fashion – but particularly for sexual harrassment. It does not matter if you have been wrongfully fired or are still employed, there is no reason to wait to find out what your legal rights are and how to protect yourself from sexual harassment and gender discrimination.
The materials available at the top of this page and at this gender discrimination, wrongful termination, and sex harassment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking “what should I do …”, “I’m being sexually harassed …” “my supervisor grabbed my…”, “my boss is touching…,” “I’ve been wrongfully terminated,” or “how do I …”, your best course is to contact an Ohio sexual harassment attorney/hostile work environment lawyer to obtain advice with respect to sexual harassment/hostile work environment questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this employment law website are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.