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How You Can Take Your Discrimination or Harassment Case to Trial in California, Even if You Signed an Arbitration Agreement With Your Employer

Many times, when you begin a new job, you are presented with a massive stack of papers to read and sign. The whole thing can seem daunting and it may be tempting simply not to read all the “fine print.” Beware, though. The employment contract you sign may involve forfeiting various rights you have, such as suing in court if you’re later the victim of discrimination or harassment. The good news is that, even if you did sign such an agreement, there may be ways to avoid its enforcement. If you’ve been harmed at work by discrimination or harassment, whatever the details of your employment agreement were, reach out to a knowledgeable Oakland employment attorney to discuss your rights and your options.

S.D. was an example of someone who was able to avoid the hurdle that his arbitration agreement presented. He held a managerial sales position at the maker of a popular energy drink when he was fired in 2018. After that termination, S.D. sued for age discrimination and sex harassment. S.D., who was in his mid 50s when he sued, alleged that he was targeted for termination because of his age and because he had supported women who were sexually harassed by high-ranking males at the company.

The employer asked the court to order both sides to arbitration. The basis for this request was the arbitration agreement S.D. had signed when he began working for the company.

Employers often favor arbitration as opposed to litigation in court because they may be able to narrow the amount of discovery you can do, and they may believe an arbitrator (or arbitration panel) will be more favorable to them than a jury would be.

S.D., however, took his case to the appeals court and obtained a ruling that said he wasn’t bound by the arbitration agreement he signed.

How is this possible, you might wonder? There actually are several ways. One option, which is the approach S.D.’s legal team took, was to attack the agreement as being unenforceable because it was what the law calls “unconscionable.”

Arbitration agreements and the law of unconscionability

There are two kinds of unconscionability, and you have to show both to get your arbitration agreement declared unenforceable. There’s “procedural” unconscionability, which refers to unfair surprise or “oppression” brought on by the fact that the other side had vastly greater bargaining power than you did when the agreement was executed. There’s also “substantive” unconscionability, which refers to agreements whose substance is unduly harsh or overly one-sided.

You do not have to have proof of both severe procedural and severe substantive unconscionability to win your argument. The law of unconscionability in California follows what’s called a “sliding scale,” which is to say that, if you demonstrate a high degree of procedural unconscionability, you need only a relatively modest showing of substantive unconscionability to get your arbitration agreement tossed. The same is true if you’ve shown only a lesser degree of procedural unconscionability but high substantive unconscionability.

When you start a new job, you may feel like you have no choice but to sign whatever is placed before you, or else forfeit the job you worked so hard to land. If, however, you later become the victim of harassment or discrimination, there may still be options for you to avoid any arbitration agreements you signed and get your case before a jury.

Part of that involves having the right legal representation. Look to Stephen M. Fuerch to be that sort of powerful and effective advocate for you. Attorney Fuerch is an experienced Oakland employment attorney who has many years of experience handling these kinds of cases… and getting results. To learn more, contact us through our website or call our office at (925) 463-2575 to schedule your confidential initial consultation today.

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