Metropolitan News-Enterprise


Tuesday, January 30, 2024


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Conduct Giving Rise to a Cause of Action Doesn’t Instantly Create ‘Dispute’—C.A.

Plaintiff Need Not Arbitrate Sexual Harassment Claim Where Controversy Surfaced After Legislation’s Effective Date


By a MetNews Staff Writer


The Court of Appeal held yesterday that while workplace sexual harassment gives rise to a cause of action upon its occurrence, it does not instantly create a “dispute,” and that alleged misconduct pre-dating enactment of the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act is subject to that act’s bar on enforcement of arbitration clauses where the employee did not press his claim until after the effective date.

Plaintiff Omar Kader on June 25, 2019, signed an agreement under which any dispute with his employer, Southern California Medical Center, Inc., would be resolved through arbitration. The federal legislation became effective on March 3, 2022.

It provides that “no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”

A statutory note to the act says:

“This Act, and the amendments made by this Act, shall apply with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act.”

Complaint Filed

In May 2022, Kader filed a complaint with the state Department of Fair Employment and Housing, which issued a right-to-sue notice later that month. The employer sought to compel arbitration, arguing that the alleged harassment began prior to the effective date of the act.

Justice Carl H. Moor of this district’s Div. Five authored the opinion which affirms Los Angeles Superior Court Judge Daniel Murphy’s denial of a motion to compel. Moor said:

“We conclude the date that a dispute has arisen for purposes of the Act is a fact-specific inquiry in each case, but a dispute does not arise solely from the alleged sexual conduct. A dispute arises when one party asserts a right, claim, or demand, and the other side expresses disagreement or takes an adversarial posture….Until there is a conflict or disagreement, there is nothing to resolve in litigation.”

He pointed out:

There is no evidence of a disagreement or controversy in this case until after the date of the arbitration agreement and the effective date of the Act, when the employee filed charges with the Department of Fair Employment and Housing…in May 2022. Therefore, the predispute arbitration agreement is invalid, and the order denying the motion to compel arbitration is affirmed.”

District Court Decision

The employer relied upon a June 27, 2023 decision of the U.S. District Court for the Western District of Pennsylvania in Barnes v. Festival Fun Parks, LLC for the proposition that a “dispute” arises contemporaneously with the misconduct. Moor wrote:

“The Barnes court acknowledged that the terms ‘dispute’ and ‘claim’ have distinct meanings as used by Congress, but then conflated the terms in that court’s analysis.”

He declared:

“Unlike a claim…, a dispute does not arise simply because the plaintiff suffers an injury; it additionally requires a disagreement or controversy.”

The case is Kader v. Southern California Medical Center, Inc., B326830.

Michael E. Williams, Dylan C. Bonfigli and Marie M. Hayrapetian of the downtown Los Angeles firm of Quinn Emanuel Urquhart & Sullivan represented the employer and Vincent Miller and Nick Sage of the Encino Law Offices of Vincent Miller acted for Kader.


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