April 14, 2021

Volume XI, Number 104

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Mainstream Recognition of Sexual Harassment Prompts Bill Prohibiting Arbitration

Allegations of sexual harassment and misconduct against business leaders, politicians and artists, have become a front page staple of newspapers across the country.  Many are shocked by the allegations and claim to wonder how they could have stayed secret for so long.  Despite the numerous cases of sexual harassment filed each year in courts throughout the country, rendering the allegations a matter of public record, a bipartisan group in Congress is blaming the increased use of nonpublic arbitrations for keeping allegations quiet.  As a result, they seek passage of a bill intended to prohibit sexual harassment and gender discrimination cases from being resolved privately in arbitration.

The bill, Ending Forced Arbitration of Sexual Harassment, would prohibit businesses from enforcing predispute arbitration agreements of sexual harassment and discrimination claims covered under Title VII of the Civil Rights Act of 1964, as amended.  A “predispute arbitration agreement” is defined by the bill as “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.”  It targets arbitration agreements that an employee might be asked to sign as a condition of getting hired or remaining employed.  The bill does not seek to eliminate predispute arbitration agreements in connection with other types of discrimination claims.

The bill does not address class action waivers, which increasingly have been included in arbitration agreements, and it requires that claims be asserted individually and not on a class basis.  Class action waivers can exist outside the context of arbitration, but they are not addressed in the bill. The bill also does not address the use of confidentiality agreements following the settlement of sexual harassment claims.

The bipartisan group supporting the bill is led by Senators Kirsten Gillibrand, D-NY and Lindsey Graham, R-SC.  Former Fox-News host, Gretchen Carlson, has spoken out in favor of the bill.  According to USA Today, Carlson stated during a press conference this week that “sexual harassment is not partisan because women from all walks of life and politics are targeted.”

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© Copyright 2021 Murtha CullinaNational Law Review, Volume VII, Number 342
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About this Author

Salvatore Gangemi, Employment Litigator, Fair Labor Standards Act, Murtha Cullina
Partner

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. Mr. Gangemi advises clients with respect to state, federal and local employment laws, including the Fair Labor Standards Act, Title VII, Age Discrimination in Employment Act, Americans with Disabilities Act, Family Medical Leave Act, and New York State and City employment laws.

He handles matters in federal and state courts and before administrative agencies, such as the Equal Employment Opportunity Commission, New York State Division of Human...

914-220-5690
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