Supervisor allegedly groped her, stopped her from walking away
An employee filed a complaint alleging unlawful harassment from her supervisor based on gender and sex, failure to prevent harassment, retaliation against her for opposing discrimination and harassment, and violations of California’s Labor Code.
The petitioner in the case of Murrey v. The Superior Court of Orange County worked for General Electric Company (GE) as a product sales specialist for ultrasound equipment.
The petitioner claimed that her direct supervisor continuously sexually harassed her and others in the workplace. He allegedly talked about his sex life and sexual acts and made unwanted sexual advances. At an organized team dinner, he allegedly groped her, stopped her from walking away, and tricked her into eating THC-laced chocolate.
She reported the misconduct to GE. One of its HR employees interviewed her via telephone. GE later told her that the supervisor was “no longer with the company.”
The petitioner’s complaint against GE alleged emotional distress and substantial losses in earnings, bonuses, deferred compensation, and other employment benefits.
She claimed that GE failed to properly complete an immediate or appropriate investigation and failed to take corrective action. GE allegedly subjected her to an illegal pattern of retaliatory behavior, denied her the appropriate support, and refused to promote her.
GE filed a motion to compel arbitration. At trial, its HR specialist was a witness. The HR specialist submitted a declaration explaining the company’s electronic onboarding system. The HR specialist attached copies of a solutions manual, which described the process for resolving claims arising out of or related to the employment relationship, and an acknowledgment of the employment conditions.
The trial court granted the motion to compel arbitration. It made the following findings:
- The arbitration agreement covered the petitioner’s claims
- All the claims arose out of or were connected with her employment
- The agreement was procedurally unconscionable
- The petitioner failed to show enough substantive unconscionability to make the agreement unenforceable
The California Court of Appeal for the Fourth District, Third Division directed the trial court to deny the motion to compel arbitration.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which was signed in March 2022, made predispute arbitration clauses involving sexual harassment allegations void. This law
did not apply retroactively to the petitioner’s complaint, which was filed in March 2021. Even so, the appellate court considered this petition.
Arbitration agreement is unconscionable
The arbitration agreement was both procedurally and substantively unconscionable due to its highly secretive and one-sided provisions, the appellate court determined. The agreement showed a concerted effort to impose a forum with advantages for the employer, the appellate court said.
First, the appellate court ruled that the arbitration agreement had a “high degree of procedural unconscionability” since it was a contract of adhesion that the employer offered on a take-it-or-leave-it basis.
The employment onboarding experience was more oppressive than in situations where the new hire received copies of the agreement and enough time to review the documents, to ask questions about the agreement’s terms, or to request changes, the appellate court said. The petitioner said that she had a short time to click boxes on the computer and to electronically sign forms.
Second, the appellate court held that the arbitration agreement had multiple substantively unconscionable provisions. Some of these provisions would require the court to substantially rewrite the agreement to remove them, which the court could not do.
