Lawmakers Consider Ending Forced Arbitration

Ending Forced Arbitration

Frequently, arbitration is an alternative to the litigation process.

But in the sexual harassment context, arbitration generally exists to protect employers. Some lawmakers are demanding change.

In February 2019, Rep. Cheri Bustos (D-IL) introduced the Ending Forced Arbitration of Sexual Harassment Act.

This straightforward measure would prohibit employers from requiring their employees to arbitrate sexual harassment matters.

Gretchen Carlson’s efforts breathed life into this proposal. Carlson, a former Fox News anchor, filed a high-profile sexual harassment lawsuit against CEO Roger Ailes.

“I am proud to have worked with Congresswoman Bustos to spearhead the Ending Forced Arbitration of Sexual Harassment Act,” she said in 2019.

“I believe every woman and man should be entitled to have their claims adjudicated in a courtroom rather than behind closed doors where victims can never discuss what happened,” she added.

This bill, which has bipartisan support in the House of Representatives, is currently pending in the House Judiciary Committee.

Similar legislation, the FAIR (Forced Arbitration Injustice Repeal) Act has cleared the House and is under consideration in the Senate.

What is Arbitration?

Arbitration is essentially a trial which occurs outside the courtroom.

An arbiter, who is like a judge, reviews the evidence and makes a decision.

This evidence includes witness testimony, physical evidence, and all other proof that’s admissible in court. In fact, arbitration rules of evidence and procedure often mirror federal court rules on these subjects.

Since arbitration is not a judicial proceeding, there are usually fewer delays.

Additionally, the matter is completely private, and generally, the arbiter’s decision is final.

The privacy and finality of an arbitration in addition to the inability to appeal arbitration decisions could be seen as another way to hide sexual harassment allegations.

Why is Forced Arbitration Legal?

The Supreme Court has repeatedly upheld the concept of forced arbitration, most recently in 2018’s Epic Systems Corporation v. Lewis.

That decision, along with the ones before it and probably the ones after it, all rely on the 1925 Federal Arbitration Act.

The FAA allows companies to include mandatory arbitration clauses covering all contract disputes which affect interstate commerce.

At the time, the FAA was a procedural measure which allowed companies to quickly resolve contract disputes.

But because of the broad definition of “interstate commerce,” this law now applies to all mandatory arbitration clauses.

Furthermore, the FAA explicitly preempts state law. And, in Epic Systems, a sharply divided Supreme Court held that the FAA also preempts the relevant provisions in the National Labor Relations Act.

As far as big companies were concerned, that was the last major legal hurdle.

Frequently, employers require workers to give up their rights to sue in court as a condition of employment.

Many employers bury such clauses in the fine print of an employment agreement.

Most workers feel these clauses are non-negotiable, and in most cases, they are right.

On a related note, forced credit card arbitration is controversial as well. Generally, cardholders never explicitly agree to arbitration.

Instead, when people use their cards, the credit card company interprets that use as consent to mandatory arbitration. The FAIR Act is aimed at situations like this one.

How Do I Recognize Workplace Sexual Harassment?

Most workers know the basic elements of a sexual harassment claim. But there is much information regarding the specifics.

Offensive computer wallpaper and demeaning remarks can constitute a hostile environment.

The environment has to be considered so bad that it prevents employees from doing their jobs, and the environment has to be objectively unreasonably toxic. This can make legal action difficult to pursue.

BUT it is not impossible, and that is why Napoli Shkolnik is ready to help you.

Quid pro quo sexual harassment is often quite subtle.

It’s illegal to tie hiring, firing, or promotion with a sexual favor. It’s also illegal to tie any positive action, such as a workstation closer to a window, on any sexual favor, such as smiling more.

Finally, retaliation is broad as well. Like quid pro quo, retaliation is not limited to entry and exit-level decisions.

Any adverse action is illegal if it is related to a sexual harassment complaint. The complaint’s validity is largely irrelevant.

Compensation in a sexual harassment claim usually includes back wages as well as reinstatement or a reasonable amount of front wages.

Additional compensation for pain and suffering might be available as well.

For a free consultation with an experienced job harassment lawyer, contact Napoli Shkolnik PLLC.