Sexual Harassment Claims No Longer Forced into Arbitration

Sexual Harassment Claims No Longer Forced into Arbitration

Many employers have used employment agreements to require workplace sexual harassment and assault claims to be heard in private arbitration. A Fox News anchor has helped convince Congress to end the practice, making a substantial change to employment law.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 was passed in February and signed into law in March 2022. The bipartisan legislation was first introduced in the Senate in 2017.

Pre-dispute arbitration agreements between employers and employees are now unenforceable for claims of sexual assault or sexual harassment. Not only can employers no longer force arbitration in these cases for new hires, but the act also invalidates all existing agreements with such a provision.

An allegedly aggrieved employee now has the choice to use arbitration or file a civil lawsuit. Workplace discrimination claims not involving sexual harassment or assault can still be ordered to arbitration.

High-Profile Case Leads to Legislative Action

Fox News anchor Gretchen Carlson was fired from her hosting gig on the network’s “The Real Story with Gretchen Carlson.” The move was surprising. The show had strong ratings, and she has been with the cable network for more than a decade.

In a personal sexual harassment lawsuit against then-Fox News Chairman and CEO Roger Ailes, she alleged she was fired because she rebuffed his sexual advances. Through this lawsuit, the world also learned she originally sought to file a lawsuit against Fox News but was blocked by a mandatory arbitration agreement.

“Forcing victims of sexual harassment into secret arbitration proceedings is wrong because it means nobody ever finds out what really happened,” Carlson said in a video posted to her Twitter account.

Her high-profile case got the attention of Sen. Lindsey Graham (R-SC). She worked with him to draft legislation that prohibited mandated arbitration in cases like her own. Carlson also collaborated with Sen. Kirsten Gillibrand (D-NY) and Rep. Cheri Bustos (D-IL) to move the bill forward.

History of Arbitration Clauses

Over the past 25 years, arbitration clauses have become increasingly common in customer and employee contracts. These clauses prevent disputes from going to court. An estimated 60 million American workers are subject to employment arbitration agreements. In these agreements, employees don’t choose to arbitrate; arbitration is a condition imposed by the employer.

Knowing that they will have to take their claims to arbitration, many employees choose to remain silent. They see that the process favors the employer because the employer pays for the arbitrator.

Those who did take a harassment allegation to arbitration were often awarded less than other types of workplace claims that went to court. With the privacy of arbitration, even systemic harassment issues could be hidden, leaving the public unaware of the repeat violations.

Legal Counsel to Fight Workplace Sexual Harassment

The Ending Forced Arbitration Act offers employees new options for accountability. Employers can no longer mandate arbitration for employees’ claims of sexual assault or sexual harassment. This change affects both the employer and employee.

At Scaringi Law, we can provide astute legal counsel for such workplace violations as discrimination, wrongful termination, and compensation disputes. Our attorneys in employment law can also help employers draft new employment contracts that reflect this new law.

If you are an employer or employee who needs legal representation, please contact Scaringi Law for a free initial case evaluation. Call (717) 775-7195 to schedule.


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