Authored By: Rob Mohr |
Public Justice, working in tandem with the National Women’s Law Center (NWLC), National Employment Lawyers Association (NELA), and the American Association for Justice (AAJ), authored an amicus curiae brief in support of plaintiff Michelle Scoggins’s sexual harassment and discrimination case against her former employer, Menards. Scoggins v. Menards is one of several cases hinging on the Ending Forced Arbitration in Sexual Assault and Sexual Harassment Act (EFASASHA or EFAA), a law passed in 2022 that guarantees the right for survivors of sexual assault or harassment to have their claims heard in court, rather than settled through arbitration, even if a valid arbitration agreement exists between the two parties.
Scoggins worked as a forklift driver at a Menards facility in Ohio. After her promotion to supervisor, she claims she suffered a pattern of discrimination, harassment, and intimidation, culminating in her termination after requesting medical leave due to side effects from her medication. Her claims are against Menards and the Assistant Plant Manager, Bill Nelson. In one instance, he slammed a door in her face and asked, “What am I supposed to hold it open for you because you are a woman? Is it too heavy for you? All you have to do is turn the handle.” In another incident, he followed her out of the office yelling, to the point that a third employee stepped in to de-escalate the situation. Scoggins reported each of these instances and others to human resources, but they took no action.
Menards appealed after the Court dismissed their motion to compel arbitration, arguing that Scoggins did not elect to “invalidate” the arbitration agreement using EFAA. Their appeal also claims the misconduct occurred before EFAA went into effect (March 2022) and that only the sexual harassment claims are required to go to trial, leaving the discrimination, retaliation, and other claims in arbitration.
In their brief, Public Justice targets all three of these claims. First, they say Scoggins’s decision to pursue her claims in court is an election not to resolve them through arbitration. On the effective date matter, they claim that some of the harassment occurred after the effective date. Ignoring that defense, Scoggins formalized her dispute after her termination in April 2023, a year from the effective date. Finally, Public Justice says precedent dictates that when one claim is protected under EFAA, the entire case is immune from arbitration.
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