In Mera v. SA Hospitality Group, LLC et al, 1:23-cv-03492 (PGG) (SDA), 2023 WL 3791712 (S.D.N.Y. June 3, 2023), the court, inter alia, denied defendant’s motion to compel arbitration of plaintiff’s New York State and City Human Rights Law sexual harassment claims.
Specifically, plaintiff’s sexual harassment (but not other) claims fell within the scope of the recently-enacted Ending Forced Arbitration of Sexual Assault Act of 2021 (EFAA). That statute defines a “sexual harassment dispute” as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” 9 U.S.C. § 401(4).
Here, plaintiff’s sexual harassment claims fell within the terms of that statute:
Plaintiff alleges that Defendants discriminated against him in violation of the NYSHRL and NYCHRL by subjecting him to a hostile work environment, in the form of failing to address the constant harassment and abuse made against him on the basis of his sexual orientation by his co-workers and Manager Marko [LNU].
Specifically, Plaintiff alleges that “[s]tarting in or around June 2022, Plaintiff’s co-workers line cook Antonio [LNU] and salad prep Agustino Salazar would call Plaintiff ‘puto’, ‘pato’, or ‘marica’, all which are homophobic slurs in Spanish,” and that “[w]hen Plaintiff was painting and working, Manager Marko [LNU] would get close and touch Plaintiff’s legs and grab Plaintiff’s wrist and waist, and say “things like, ‘did you have good sex during your vacation.’”
These allegations are sufficient to raise a dispute relating to conduct that is alleged to constitute sexual harassment under the NYSHRL. The NYSHRL makes it an unlawful discriminatory practice “[f]or an employer, because of an individual’s sexual orientation to discriminate against such individual in compensation or in terms, conditions or privileges of employment. In analyzing actions under the NYSHRL, New York courts have adopted principles which define actionable sexual harassment under Title VII of the Civil Rights Act of 1964. Sexual harassment that results in a hostile or abusive work environment is prohibited as a form of employment discrimination.
Based on this, the court held that plaintiff’s complaint pleads a dispute within the scope of the EFAA. The court did not address whether plaintiff stated a claim under the NYSHRL or NYCHRL, as the defendants did not file a motion as to the legal sufficiency of such claims.
The court further held that plaintiff’s wage-based claims under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL) did not “relate to” the sexual harassment dispute, was therefore outside the scope of the EFAA, and, in turn, must be arbitrated pursuant to the parties’ Arbitration Agreement.