New law irrelevant to old conduct

Federal law barring forced arbitration of sexual harassment cases only applies in cases where the dispute or claim accrued after March 2023. But what if an action is filed after March 2023 that refers to conduct that predated that enforcement date? The U.S. 9th Circuit Court of Appeal (whose rulings apply to all California employers) recently reviewed and determined that question. 

Netflix’s long running episodes of sexual harassment 

Jessica Combs accepted a job at Netflix in May 2017, signing a standard employment agreement containing a broad mandatory arbitration clause. Soon after starting, she discovered that the company promoted a flirtatious office environment that was highly sexual in nature, fostering unwanted comments and a culture of “sexual curiosity.” Employees were encouraged to schedule one-on-one meetings that frequently carried heavy sexual undertones, with male colleagues using them to flirt or ask her out. 

The behavior escalated during a September 2018 company offsite meeting, where Combs was forced to participate in “team building” activities that resembled forced speed-dating games, requiring her to stare into colleagues’ eyes and compliment their physical appearances. Additionally, she noted that male employees routinely used a workplace stairwell to look under female employees’ dresses, and she faced unwanted sexual advances during a work trip to Singapore in October 2018.