One of #MeToo’s Biggest Wins Is About to Be Tested in Court

One of #MeToo’s Biggest Wins Is About to Be Tested in Court

One of #MeToo’s Biggest Wins Is About to Be Tested in Court

A new federal law bans employers from pushing employees into private arbitration when they file claims of sexual harassment or assault. Patricia Olivieri is using it to seek justice.

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After working in finance for several years, Patricia Olivieri was “excited,” she said, to join financial firm Stifel Nicolaus at their New Jersey offices in 2018. Her goal was to “work my way up and advance my career there,” she said.

She still works there, but only thanks to sheer perseverance in the face of what she alleges is ongoing and severe abuse. Shortly after she started working at the firm, she says, a supervisor began sexually harassing her, talking to her about sex and rape, and touching her inappropriately.

Scared for her physical safety and her job security, she requested a new supervisor and eventually reported what was happening to HR. But her abuser was never penalized or moved, she alleges. So she decided to file a lawsuit in January 2021. “I said, ‘I have to protect myself. I can’t allow the company to sympathize with my sexual harasser and just throw me out of here like I’ve done something wrong when I haven’t,’” she said. “I can’t let other women go through this, I need to stand up to this. Because if they’ll do it to me they’ll do it to someone else.”

It was then that she found out that the company had a clause in its employee handbook forcing employees to take disputes to private arbitration. Instead of letting her allegations be heard in an open court before a jury of her peers, the company wanted to push her into a private, expedited process that has few of the procedures of a court case and results in binding, undisclosed decisions. “It’s a privatized judicial system paid for by employers,” said David Gottlieb, a partner at law firm Wigdor LLP who is representing Olivieri.

Stifel Nicolaus didn’t respond to a request for comment.

Being compelled into arbitration “makes me feel like I’m being forced into a closed setting in private, away from a jury that could really hear me out,” Olivieri said. “It just feels like being pushed down and shoved aside, and it’s not fair. I can’t truly vindicate myself that way.”

Olivieri now has something on her side, however: congressional action. In March 2022, President Biden signed a bipartisan law, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), which bans employers from pushing employees into private arbitration when they file claims of sexual harassment or assault. First introduced in the wake of #MeToo, it’s retroactive, invalidating existing forced arbitration clauses.

Olivieri is among the first people to put the new law to the test, and if her case is a guide, it is poised to be both expansive and effective. On March 30, Judge Joan Azrack in the Eastern District of New York issued an order in Olivieri’s case reversing an earlier decision to grant Stifel’s motion to force her into arbitration. Olivieri and her legal team had argued that because she was enduring ongoing retaliation from Stifel, those recent claims couldn’t be forced into arbitration. Judge Azrack went further, ruling that all of her claims, even the ones predating the new law, couldn’t be pushed into private arbitration.

The EFAA is “a terrific step forward,” said Gillian Thomas, a senior staff attorney at the ACLU Women’s Rights Project who is not involved in Olivieri’s case. “People who have experienced sexual harassment are going to be freed from being diverted into these nonjudicial proceedings, which very much favor employers and deprive people of the ability to vindicate their rights in court.”

The harassment and abuse Olivieri suffered began almost immediately after she started working at Stifel. Once she started reporting to Neil Isler, a senior investment manager, he started talking to her inappropriately, talking about cheating on his wife, having sex with a mistress in a car, and telling her about a threesome he had with his wife, she alleges. He told her his wife liked to “get fucked really hard” and that they had anal sex, and then asked her if she liked such things. He repeatedly brought up threesomes, pressuring her to have group sex with him and his wife. He once brought her into his office to supposedly talk about a project, she said, and then told her a story about a friend who got away with raping a woman. Another time her called her in while he was openly viewing pornography. “Just really icky kind of stuff,” she said with a grimace. “I kind of couldn’t believe what was happening.”

She hoped it would stop, especially when she made it clear that she wasn’t interested and spoke frequently of her husband and her family. But it only escalated. “It was ongoing and worse and worse and worse,” she said. “It made me feel very stuck.” She said he insisted on making her kiss him goodbye on the cheek. He began pretending to leave work only to wait around for her to try to walk out with her. “I didn’t know at that time, is he going to try and rape me, is he going to take me somewhere where someone can’t help me, going to corner me when no one’s around?” she said. He would come to her cubicle and put his hand over her hand on her computer mouse, she alleges, standing so close that his crotch nearly touched her. He once assaulted her in his office by groping her buttocks.

“I was really scared,” she said. The abuse quickly affected her life both inside and outside of work. It was hard to get things done in such an environment. “I just wanted to work my normal job,” she said. “I wanted to work, be productive, and come home. I just could never do that.” She didn’t know how to tell her husband, so she kept it from him, which took a toll on her marriage. “I couldn’t even live my normal life outside of work,” she said. She spent Sundays getting and more and more anxious about having to go back to work on Monday. She had panic attacks. She still has nightmares. “Thoughts pop into my head,” she said. “It’s disturbing.”

“It’s strained every aspect of my life,” she said. Isler didn’t respond to a request for comment.

For a while she didn’t tell anyone at work, out of fear that she would lose her job or the company wouldn’t believe her. But it got so bad that one day she asked her manager to transfer her so that she wouldn’t work with Isler. The manager wanted to know why and “kind of pried it out of me,” she said. She ended up telling her story to the HR department. The company launched an investigation, but she felt she was being accused, not listened to. An HR representative told her it was a “he said, she said” situation, she alleges. “They basically had a pre-drawn conclusion, it seemed, in his favor,” she said. Isler was never disciplined and continued to work from the same office, according to her complaint. After all, he made a lot of money for the company working with a Rolodex of clients who would go with him if he left. “They didn’t want to lose his revenue flow just to protect me,” she said.

Instead, she said she has felt like she was the one being punished. Before she told the company about what happened to her, a manager had urged her to apply for an internal promotion and to get the credentials she needed to qualify for it. But by the time she had worked toward the licensing and applied, she had made her complaint; she said she never got an interview and someone less qualified was hired instead. After her lawsuit, her complaint alleges, her job responsibilities were essentially stripped from her and she was forced to report from a less desirable location while Isler worked from the same office. She was told to log any break of 15 minutes or more so that she would be docked pay, a big departure from the company’s previous practice of letting her take an afternoon to go to a doctor’s appointment without losing pay. When she asked whether the policy was being applied to other employees, the company refused to answer.

These are the kinds of charges she wants to make in a courtroom, not in front of an arbitrator. “I don’t think it’s fair to force people into arbitration,” she said. “That’s kind of tying their hands behind their back and not letting them fairly defend themselves and take action against a potential harasser.”

“It can mitigate things for the company, but it doesn’t do any service for the employees,” she added.

The evidence about arbitration backs her up. “Arbitration clauses and arbitration proceedings are really stacked against the plaintiff and very much stacked in favor of the defendant,” Thomas said.

Arbitrators don’t have to be judges or even lawyers, and they are frequently selected by and paid by the employers. They are typically defense lawyers who have experience defending companies against discrimination claims. Gottlieb said that in his experience the “vast majority” are white men. “It’s not like a jury where you have a cross section of society,” he said. What they decide is binding; there is no right to appeal the outcome. And years of evidence shows that their decisions are overwhelmingly slanted in favor of employers. Employees win in arbitration only about 20 percent of the time, compared to a nearly 60 percent win rate in state courts. If they do win, they are likely to get less money. Average damages for employees in arbitration are less than $24,000 but nearly $144,000 in federal court and over $328,000 in state court.

When a case is in court, there are myriad rules and standards dictating the information that employers have to turn over in discovery, which are “very expansive,” Thomas said. That’s not the case in arbitration. “Arbitrators don’t give you discovery,” Gottlieb said. They usually “limit the amount of discovery you can get, and discovery is how you make your case, that’s where you get your evidence.”

Olivieri likely wouldn’t be able to get answers to her questions in arbitration, such as whether the new 15-minute break policy applies to other employees. Nor would she be able to find out if anyone else had complained about being harassed by Isler, as well as whether he had been disciplined.

And the outcomes of arbitration aren’t made public the way court decisions are. “It helps keep a shroud of secrecy around the outcome,” Thomas said. That means there is “limited accountability to the employer,” Gottlieb said.

There’s also evidence that a threat of arbitration in an employee handbook or contract is enough to silence people. One analysis found that over 98 percent of the claims that would be expected to be filed by workers never appeared.

When President Biden signed the EFAA into law in 2022, it represented a major step forward toward ensuring that victims of sexual harassment and assault get a fair chance in court.

But as important as it is to ban arbitration in cases of sexual harassment and assault, Thomas called the EFAA “a glass half full” and “a starting point, not an end point.” There are many other forms of harassment, not to mention discrimination, that people experience at work based on their race, ethnicity, age, disability, and gender. If it makes sense to eliminate forced arbitration for one form, why not all of them? “The fact remains that a full range of harassment is alive and well in the workplace,” Thomas said. “It’s just as painful. It’s just as demeaning.”

And yet more than half of nonunion, private-sector American workers, or about 60 million people, are estimated to be subject to forced arbitration clauses.

The failure to ban all forms of forced arbitration leaves other victims powerless against employers who push their claims out of court. Thomas also worries that it will make judges “slice and dice” claims and separate sexual harassment from, say, racial harassment, when the person experiencing them makes no such distinctions. “That’s not how this feels when you’re being harassed. It all feels like one pattern of abuse,” she said. “Those of us who litigate these cases have fought really, really hard to have courts aggregate.”

Olivieri is optimistic about the chance to have her day in court. “They have to be held accountable,” she said of Stifel. “There has to be change.” She also hopes the new law can help other people, too, so “other companies can be held accountable and other people don’t feel pushed down and shoved out.”

But already the company has appealed the judge’s decision to the Second Circuit, so Olivieri is still waiting to find out if she ultimately will be able to avoid arbitration. “I’m in limbo,” she said.

“Why should this stay behind closed doors?” she said of her case. “Why shouldn’t it be out in the open and vindicated?”

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