Puris v. TikTok

Puris v. TikTok

What’s at Stake

Ever since Congress passed the Ending Forced Arbitration in Sexual Assault and Sexual Harassment Act (EFAA) in 2022, companies have been trying to find ways around it. The EFAA says that a plaintiff who brings a case that relates to a “sexual harassment dispute” can elect to bring her entire case in court, rather than in arbitration. In this case, TikTok is trying to force the plaintiff, who alleges sex-based harassment, retaliation, and other workplace violations, into arbitration by arguing that her claims do not meet the definition of a “sexual harassment dispute.”  But if the court follows TikTok’s interpretation of how and when to apply EFAA, it could significantly narrow the law’s protections. Not only would that exclude workers the law is supposed to help, it would be inconsistent with what Congress had hoped to achieve and the statute itself. This is the first time the U.S. Court of Appeals for the  Second Circuit will be considering these issues, and how it rules could impact how other courts interpret EFAA.

Summary

In her complaint against TikTok, Katie Puris alleges the following:

She began working at TikTok in 2019 as Head of Business Marketing in North America and was soon promoted to a position leading the whole Global Business Marketing team. Although she received positive feedback, TikTok leadership also made comments that demonstrated sex- and age-based stereotypes, including her managers referring to her as “emotional,” “passionate,” and “an amazing wife and mother,” while also criticizing her for lacking “humility.” Katie, who was 48 at the time, was also told by managers that the company preferred hiring younger workers over those with more experience.

In 2021, TikTok’s new management team instituted the “996” schedule, requiring employees to work from 9:00 a.m. to 9:00 p.m., six days per week. The schedule took its toll on Katie’s health, and she told her managers that she wanted to take time off but felt she could not because of the pressure of her work schedule. Soon after that, she was informed that TikTok wanted to move her to a new role because her leadership style was too “emotional.” Katie eventually moved to a new position as Head of Global Brand and Creative Organization.

Even though Katie performed well in that new role, she was still concerned about the impact of TikTok’s working conditions on her health and the health of her team. She shared those concerns with Human Resources in early 2022. Soon after, she received a negative performance review. She felt this review was rooted in her complaints about TikTok’s extreme and discriminatory workplace, not her actual performance. When she shared these worries with Human Resources, the size of her team was significantly reduced.

In the midst of navigating what had become a hostile and retaliatory environment, Katie attended the 2022 Cannes Lions International Festival of Creatvity with 100 other TikTok employees. At a business dinner, Katie was sexually harassed by an attendee who worked for a major TikTok vendor. She reported the incident immediately to her supervisor and then Human Resources, but no action was taken to protect her from the harasser during the remainder of the trip, and she was forced to skip an important presentation in TikTok’s event space because she was told he would be there. When she returned from France, Katie had to follow up with Human Resources to finally meet with an attorney from the Ethics team. During their meeting, she shared the details of what had happened and her concerns that no action had been taken to protect her while she was in France. In September 2022, Katie again contacted Human Resources to voice her worries about how the harassment in France had been handled, particularly in the broader context of how women were treated and underrepresented at TikTok. She also again raised her concerns about TikTok leaders prioritizing younger hires and pushing its workers beyond their breaking points. Several days after making this complaint, she was fired.

Core Legal Problem

Katie sued TikTok under federal, state, and New York City law, alleging sex discrimination, age discrimination, disability discrimination, a sex-based hostile work environment, retaliation, and interference with workplace protections. Many of TikTok’s employees are bound to arbitration agreements and cannot sue the company in court. Based on this, TikTok moved to compel Katie into arbitration. The district court denied the defendants’ motion to compel arbitration, concluding that the EFAA made the arbitration agreement invalid because her case was a sexual harassment dispute within the meaning of the statute. It held that her retaliation claim was a dispute “relating to conduct alleged to constitute sexual harassment under federal or state law,” meaning it was definitively a “sexual harassment dispute” within the meaning of the EFAA. TikTok also argued that the EFAA should only apply to plausibly stated claims for relief that would survive a Rule 12(b)(c) motion to dismiss, an unworkable standard that is contrary to the text and legislative history of the statute. The district court rejected these arguments as well.

Defendants appealed the district court decision in the U.S. Court of Appeals for the Second Circuit.

The case raises several important questions of first impression in the Second Circuit, including whether, for the EFAA to apply, the “sexual harassment dispute” must involve allegations that the harassment was “lewd” or “sexual” in nature, rather than “sex based;” whether a retaliation claim is a “sexual harassment dispute” under the Act if there is not a separate plausibly alleged sexual harassment claim; whether courts must apply the Rule 12(b)(6) plausibility standard to determine whether the Act applies; and whether the Act applies to invalidate an arbitration agreement as to the entire case involving a sexual harassment dispute or instead only the claims of or relating to sexual harassment.