This is an employment action alleging disparate impact discrimination on behalf of a putative class of female Google employees who were required to arbitrate sexual harassment claims, in addition to several individual claims by the named plaintiff. Before the Court is Google’s second amended petition to compel arbitration, which plaintiff opposes.
I. Factual and Procedural Background
According to the operative first amended class action complaint (“FAC”), plaintiff worked as a software engineer for Google for over seven years with excellent performance. (FAC, ¶ 1.) However, she was frequently subjected to sexual harassment by male co-workers who engaged in inappropriate behavior and made lewd remarks to her. (Id. at ¶ 2.) For example, male colleagues spiked her drinks with whiskey and laughed about it. (Id. at ¶ 21.) They shot nerf balls and darts at her almost every day. (Ibid.) One colleague sent plaintiff a text message asking if she would like a “horizontal hug.” (Ibid.) Another showed up at her apartment with a bottle of liquor and refused to leave. (Ibid.) Plaintiff was slapped in the face by an intoxicated male co-worker for no apparent reason, and was constantly ogled by men in the workplace. (Ibid.)
One particularly troubling incident occurred in January of 2016, when plaintiff found a male co-worker hiding under her desk. (FAC, ¶¶ 3, 22.) The colleague jumped up and shouted, “You’ll never know what I was doing!” (Id. at ¶ 22.) The next day, he approached plaintiff and grabbed the name badge that hung around her neck, grazing her breasts. (Id. at ¶ 24.) Google’s human resources department pressured plaintiff to file a report against this co- worker. (Id. at ¶ 3.) When plaintiff refused because she feared being labeled an “informer,” human resources wrote her up and failed to take any remedial action to address the incident. (Ibid.) As plaintiff anticipated, over the next few weeks neither the co-worker in question nor anyone else in her group would approve the code she had written, and she did not receive appropriate feedback on her work. (Id. at ¶ 4.) Plaintiff eventually filed a report, but her claims were not thoroughly investigated and her colleagues’ inappropriate behavior continued unabated. (Id. at ¶ 30.)
Around the time of the January 2016 incident and at Google’s suggestion, plaintiff took a medical leave to receive treatment for her mental health after working extreme hours for many years. (FAC, ¶¶ 5, 35.) Shortly after she returned, plaintiff was injured in a motor vehicle accident and requested time to attend physical therapy appointments. (Id. at ¶ 5.) She also took medication that made her sleep schedule erratic. (Id. at ¶ 38.) Google failed to grant her requests for accommodation or engage in an interactive process to accommodate her disability. (Id. at ¶¶ 5, 37-38.)
In February of 2016, Google terminated plaintiff for “performance issues.” (FAC, ¶ 6.) The termination came shortly after she asked for disability accommodations and was in violation of public policy. (Ibid.)
Plaintiff alleges that Google has a policy of forcing employees to sign an arbitration agreement mandating secret arbitration of all sexual harassment claims, an agreement she signed as a condition of her employment when she began working for Google in 2008. (FAC, ¶ 8.) Female Google employees are disparately impacted by this policy, as women bring the vast majority of sexual harassment claims and fare worse in arbitration than men. (Id. at ¶ 9.) Harassment victims also recover two-thirds less in arbitration than in litigation, which is a substantially greater reduction in recovery than the reduction observed with regard to other employment claims. (Ibid.) Finally, while a jury pool is likely to be equally divided by gender, arbitrators from Google’s arbitration provider are disproportionately white men. (Id. at ¶ 51.)
Plaintiff’s original complaint asserted only individual claims arising from the harassment and discrimination she alleges. On March 23, 2018, Google filed its original petition to compel arbitration, and plaintiff filed the FAC. The FAC newly asserted (1) an individual and class claim for disparate impact discrimination in violation of FEHA, as well as re-alleging plaintiff’s individual claims for (2) hostile work environment in violation of FEHA, (3) gender discrimination in violation of FEHA, (4) failure to prevent sexual harassment in violation of FEHA, (5) retaliation in violation of FEHA, (6) disability discrimination in violation of FEHA, (7) failure to accommodate in violation of FEHA, (8) failure to engage in the interactive process in violation of FEHA, (9) wrongful termination in violation of public policy, (10) interference in violation of the Family and Medical Leave Act (“FMLA”), (11) retaliation in violation of FMLA, (12) interference in violation of the California Family Rights Act (“CFRA”), and (13) retaliation in violation of CRFA. Google filed an amended petition to compel arbitration addressed to the FAC.
According to Google’s counsel, plaintiff propounded discovery requests addressed to the issue of whether Google is subject to the federal Franken Amendment, discussed below. The parties met and conferred on these requests, but were unable to come to agreement. Google subsequently filed its second amended petition to compel arbitration in order to address the Franken Amendment issue. That petition has now come on for hearing by the Court.
II. Legal Standard
Code of Civil Procedure section 1281.2 provides that a court must grant a petition to compel arbitration “if it determines that an agreement to arbitrate … exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement,” among other exceptions. (Code Civ. Proc., § 1281.2; see also 9 U.S.C. § 3 [the court must grant a motion to compel arbitration if any suit is brought upon “any issue referable to arbitration under an agreement for such arbitration”].)