For workers in California and across the United States, sexual harassment and other employment violations are a continuing problem. This is true despite greater attention being paid to it in high-profile cases being played out publicly and with various movements to curb this behavior. One problem that frequently arises and hinders efforts to address this is mandatory arbitration. The legal issues surrounding this requirement are not yet settled despite various decisions being made as to whether it can still be used. For employees who were required to sign such an agreement as a condition of their employment, it is has led to a failure to report misbehavior perpetrated on them. Even with the law in flux, it is important for employees to be cognizant of their rights.
Appeals court set to decide on mandatory employment arbitration
Under AB 51, California had outlawed the requirement that employees sign an arbitration agreement as part of their conditions for employment. Employers filed lawsuits to stop it from being enforced. Now, there is a temporary restraining order and the case is set to be heard by the 9th Circuit Court of Appeals. Until the Appeals Court hears and decides on the case, employers cannot require employees to sign these agreements. The U.S. Supreme Court can also get involved. This issue is garnering attention on Capitol Hill with the U.S. Senate taking up a proposal to end forced arbitration in cases in which workers claim they were sexually harassed or sexually assaulted.
U.S. Senate also looks at arbitration in the workplace
In its proposed law, S.2342, Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, mandatory arbitration agreements would be eliminated and workers could then file a lawsuit. It is a bipartisan law. Mandatory arbitration is viewed as a shield for those who commit harassment and abuse because there are few repercussions for those who have been accused. The catalyst for these laws was the harassment lawsuit filed by a former Fox News anchor who claimed her boss had sexually harassed her. She was constrained by forced arbitration, preventing her from outing him and protecting others who might have been victims in her wake.
Since arbitration is generally confidential, companies prefer it to a public forum where they might invite a negative perception for the allegations. Arbitration is categorized as a faster way to settle these disputes. Still, true or not, there is a belief that arbitration tilts toward the employer with reduced awards to plaintiffs than there would be in a civil case even if the decision is in their favor. The #MeToo movement was a catalyst for the advancement of ending mandatory arbitration. However, like the #MeToo movement, there have been limits to its effectiveness and people say they continue to face harassment in the workplace.
Understanding the complexities of employment law requires guidance
As this legal wrangling shows, simply pursuing a complaint after sexual harassment or facing other illegal behaviors in the workplace is not a simple process. The law will be a mitigating factor in how the case proceeds. With mandatory arbitration an obstacle for many victims, it is wise to keep track of how these cases are going and to have assistance with crafting solutions in a legal case. From the beginning, it is important to know how to move forward with a case and consulting with those experienced in employment law is a first step.