In this episode, we discuss the recently passed Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. This law bars employers from enforcing pre-dispute arbitration for claims of sexual assault or sexual harassment. Cathryn Harris-Marchesi is The Noble Law’s partner in New York City, a federal constitutional attorney with a focus in employment law, and a member of the Women’s Intercultural Network. She joins Laura to discuss the outcomes of this new law.
What is arbitration?
Arbitration is a private ruling determined by an arbitrator hired by the participating parties. Historically speaking, one of the primary advantages for employers choosing arbitration over court is that it keeps their misdeeds private. While complained filed in court become public documents, the information discussed in an arbitration is not available to the public.
Additionally, arbitrations aren’t decided by an appointed judge, meaning their prior decisions are not publicly available to review for biases, and they are often hired by the employer. While the decisions made through arbitration require the same standards as filing in court, the arbitrator themselves, not being a judge, may not be as qualified to make an appropriate decision. Employers can choose to select an arbitrator who has favored them in the past which creates uneven bargaining power.
What is the difference between arbitration and mediation?
Mediation is the process of opposing parties negotiating a mutually agreed upon settlement. A mediator does not determine the outcome of a matter – they help two parties negotiate and come to a decision. An arbitrator makes the final decision which can only be appealed by filing an appeal in court which is very expensive, discouraging employees from taking further legal action.
What is the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act?
Until recently, it has been common practice for employers to require a forced arbitration agreement upon onboarding a new employee. This agreement bars the employee from going to court against the employer, and waives their right to class action or joint action lawsuits. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 establishes a carve out of this practice for matters that deal with sexual assault or sexual harassment. An employer can no longer force an employee to resolve their sexual assault or sexual harassment claims through arbitration. It is now the employee’s choice whether they want to go to state or federal court.