Employee Survival Guide® - Employers Are Still Pushing Arbitration of Sex Discrimination Cases in Violation of Federal Law

Episode Date: June 3, 2024

Comment on the Show by Sending Mark a Text Message.Can employers really push for arbitration in sex discrimination cases, flouting federal laws? Join me, Mark, as we dissect this pressing concern and shed light on the ramifications of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. Signed into law by President Biden, this legislation was supposed to be a beacon of hope, but in reality, many employers and their legal teams continue to demand arbitration, blatantly violating the law. We'll also unravel the expansive definition of sexual harassment under the Act, which covers all forms of sex-based and gender-based discrimination, including sexual orientation and pregnancy discrimination. Through my personal encounters and legal confrontations, I underscore the importance of understanding and asserting your rights.The hidden complexities and inherent pitfalls of arbitration often turn it into a daunting ordeal for employees. Corporations are not shy about leveraging arbitration to protect bad actors and manipulate outcomes in their favor. This episode is your guide to recognizing these corporate tactics, so you're better equipped to navigate these challenges. By staying informed and vigilant, we can collectively challenge unlawful practices and ensure that justice prevails. Tune in to gain the knowledge and empowerment you need to protect your rights in the workplace.Links:https://capclaw.com/how-to-manage-sexual-harassment-cases-after-the-federal-ban-on-forced-arbitration/https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2022cv06669/584300/70/ If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide where I tell you as always what your employer does definitely not want you to know about and a lot more. It's Mark here and welcome back. Today's episode we're going to talk about employers are still pushing arbitration of sex discrimination cases in violation of federal law. Employers get so used to their own default implement practices like a drug addiction, and they cannot stop quote unquote using even when it violates federal

law. Employers are still demanding employees who assert sexual harassment claims must file their claims in arbitration because they think employers are too stupid to understand what forced arbitration is and what the new federal law against forced arbitration requires. Shame on them. On March 3, 2022, President Biden signed into law the federal ban on forced arbitration in sexual harassment and sexual assault cases. I wrote a blog article about this entitled, How to Manage Sexual Harassment Cases After the Federal Ban on Forced Arbitration, and I'll include a link in the show notes below.

after the federal ban on forced arbitration, and I'll include a link in the show notes below. I've repeatedly confronted this issue in several cases, hence why I'm writing the episode. Each time the employer with a poker face demeanor makes demands that the employee must pursue their claims through arbitration and not in court. This pisses me off, and again, why I wrote this episode. Employers tell me this farcical, quote unquote, after they receive a copy of the federal complaint we are about to

file which discloses a parade of bad acts of sexual harassment, gender discrimination, and pregnancy discrimination by their management staff or coworkers. Essentially, we draft complaints that are an embarrassment to the company and pose a PR problem. Because that's the only way employers listen, unfortunately. These employers are represented by seasoned employment law counsel, who I've known for years, yet they believe that the new law does not apply to the case. In response, I quickly send them the most recent case decisions from the relevant federal courts, which indicated that their clients do not have an argument to stand on and to ban on forced

arbitration and sex discrimination cases and controls. Here are a few court pronouncements that I have sent to my colleagues to remind them about what the law actually provides. Ending forced arbitration of sexual assault and sexual harassment act of 2021, it's called the EFAA, which amended the Federal Arbitration Act, the FAA, government likes acronyms, and which President Biden signed into law on March 3rd, 2022. As pertinent here, the EFAA defines sexual harassment dispute as a dispute relating to the conduct that is alleged to constitute sexual harassment under applicable federal, tribal, and state law. That's the definition. Pretty broad.

At the election of a person alleging conduct constituting a sexual harassment dispute, the EFAA makes predispute arbitration agreements unenforceable with respect to a case which is filed under the federal, tribal, and state law and relates to the sexual harassment dispute. The FAA, Federal Arbitration Act, which was enacted to respond to widespread judicial hostility to arbitration agreements, requires courts to place arbitration agreements

on an equal footing with other contracts and enforce them according to their terms. Sounds straightforward, right? Well, what this meant, what I just read, was the beginning of the tyrant rule of FAA over employee rights and basically secretizing them into federal arbitration claims

under the Federal Arbitration Act and essentially providing cover, confidentiality cover, for many, many employers for a very long time. So employers use them under the, they use arbitration agreements in general to bring about the confidentiality or at least prevent from going into court,

cases that would normally hit the courthouse steps and then you would see it in the news press. Employers make two routine arguments to me. First, if it's not sexual harassment specifically, then the case goes into arbitration. Second, if it is a sexual harassment case of some form, which I'll explain in a moment, then the case will be split in piecemeal litigation. The sexual harassment case can stay in court according to the recent statute that President Biden signed into law.

And the rest of the case will be filed in arbitration. Fortunately for employers and fortunately for employees, both arguments fail and that is what the courts have held. First one. I'm bringing this to your attention because I'm confronting it and I'm shocked that I'm hearing it from opposing counsel who bring it to my attention while we're trying to negotiate the settlement before filing a lawsuit. And it's just remarkable. Here's a federal law and employers with a straight face

saying, you gotta go on arbitration. And this is my reaction to it. I wanna make sure that you as the listener and as the employee, maybe you're from management, and you understand that the law is very, very clear about this. And a ban on forced arbitration and sexual harassment cases, it's the law of the land.

So if you see it happening to you or you see it something, tell people, that's the only way the word gets around and we need to stop this practice. So the first one, sexual harassment is broadly defined under the force ban, the act ending, ban on arbitration in sexual harassment cases. The term sexual harassment was not defined in the statute, which means it has a broad coverage to most every form of sex-based and gender-based discrimination. It's very, very important you understand that. of sex-based and gender-based discrimination. It's very, very important you understand that. It's just not sexual harassment. This means that sexual orientation claims

cannot be forced into arbitration. Why? Because it's a statute or a claim based upon sex in general. Further, the term is so broad that it covers gender discrimination in general because sex and gender, one and the same. It also is so broad to cover every form of pregnancy discrimination. Again, pregnancy involves what?

Sex of women. Men are obviously not going to get pregnant, but it does cover the act of the paternal leave by the husband. So again, if there's any linkages to gender, you have an issue of the ability to push the case into court. Remember, if the claim is rooted in sex gender, employers cannot force arbitration in courts. I'm summarizing what the federal courts have held around the country, because I had to go through

this episode several times, and I did the research in coming back to you and providing the information. We also discovered that the courts will deny a motion to compel arbitration. What's the tool that employers use in state or federal court to compel arbitration when a case is filed, which the employers assert that it should have been filed in arbitration. And the courts, when they view a complaint that has a complaint that has a claim of hostile work environment, that claim involves obviously sex discrimination,

and the mere presence of the claim in the complaint allows the court to easily qualify the sex-based claim as sexual harassment and deny the arbitration. So, include this hostile work environment claim in your case. And also include it in the free complaint negotiations you're having with the employer because you want to tell them in some of the message, hey, we understand what we're doing here. We're telling you this case is going to go public. Mr. Employer, do you want it to go that way because you can't stop us? Remember, employers can't stop an attorney like myself from filing a button

on a computer and making that case go public on a court docket. All right? So they can try to manipulate the process with money and shove it in your face, but you've got to remember what the law is here. So the second aspect of what employers try to do is this. They say the entire case is exempted and allowed to move forward. Previously, employers tried to piecemeal it. You know, here's a sexual case, you can go forward, but the rest of the case has to stay behind

and push it into arbitration. The second issue the employers are trying to shove in my face, and they do, is that only the sex gender claims can be asserted in court, but the rest of the case must be filed in arbitration. Typically under the Federal Arbitration Act, quote, if a dispute presents multiple claims, some are, I knew I was going to screw this up, are arbitrable, meaning that they're capable of arbitration.

Try saying that 10 times. I knew I was going to screw this up. Arbitrable, meaning that they're capable of arbitration. Try saying that 10 times. And some not. The former must be sent to arbitration even if this will lead to piecemeal litigation. But the FAA's mandate supports, mandates in support of its liberal federal policy favoring arbitration agreements. That's what the law has been for the last 30 plus years. But the mandates may be overridden by a contrary congressional command.

That was a court case site that I'll include in the show notes. However, when a complaint presents a well-pleaded sexual harassment claim, it makes the arbitration clause unenforceable as to the other claims asserted in the case. It makes the arbitration of other claims unenforceable as arbitration and have to be included in the case. It's a big deal for employers and they're really scared about that, okay?

That's why they come up with this type of behavior they give me after 28 years doing this work line of work, trying to tell me what the law is or not and try to force an arbitration. It's bullshit. It's a clear leverage factor for employees. And you have to understand if you have an arbitration agreement

somewhere in your personnel file, or you sign it electronically, because they love to do that. Check the box electronically and they date it. So try to find out if through the HR portal, if you have an arbitration agreement and you're about to launch or let your employer know that you have a sex discrimination case of some form and you want to let them know internally as you're trying to negotiate maybe severance and you can do this on your own.

You don't need a lawyer to do this. You can assert a sexual harassment case, gender to create a case, or a pregnancy case in severance negotiations, make it appear that you have counsel, and tell the employers, you know, if it's involving gender or sex, it's not going to be subject to arbitration. You need to utilize this as a feature of your negotiation. Is it a highly informed idea or position to take with the employer? Yeah, I'm giving you the information. It's free.

Power is in the information you have. So if I'm doing it on behalf of my clients, you should be doing it on behalf of yourself. So it's a really huge leverage factor, and here's the kicker. The use of the sex, gender, pregnancy case, claim in a case, and oftentimes people have multiple claims. They have race claims, age claims,

sexual orientation, we already covered that, but maybe a disability claim, or a Feminine Medical Leave Act claim. All of those, all of them get included in the complaint and the employer can't push you into forced arbitration. All right? So it's really an important thing to understand. There's no piecemeal here.

The courts are enforcing the ban against all of the claims, even if they're not related to sex, gender, pregnancy. So there's a New York federal court judge named Judge Engelmeier who is cited with a case that's beginning precedent and people are following it. And what Judge Engelmeier said is this about this, having the entirety of the case go public and not the piecemeal litigation into private arbitration. So Judge Engelmar says this, he says, quote, "'In its operative language, the EFAA makes a clear, makes a pre-dispute arbitration agreement invalid

and an unenforceable with respect to a case which is filed under the federal, tribal, and state law and relates to sexual harassment dispute. This text is clear,' he says, "'unambiguous and decisive as to the issue here. It keys the scope of the invalidation of the arbitration clause to the entire case

relating to sexual harassment dispute. It thus does not limit the invalidation to the claim or claims in which that dispute plays a part. The statutory text of the EFAA makes the corollary true here. Congress's choice to amend the FAA, the Federal Arbitration Act, directly with text, broadly blocking enforcement of an arbitration clause with respect to the entire case

relating to a sexual harassment dispute, reflects its rejection in the context of the FAA norm of allowing individual claims in a lawsuit to be parceled out piecemeal to arbitrators or courts depending on each claim's arbitrability." See, I got that right that time. End quote. So the bottom line here, folks, is that the employer should back off their high and mighty twig of a tree stump

and stop violating the federal law banning forest arbitration, because that's what I'm seeing on my end. This is how blatant employers are. And we're talking about very large, powerful corporate enterprises without naming names. They know who they are because I am talking about them. And this happened to me recently, at least several times.

And so this twofold approach of the latter, piecemeal litigation, that's stopped. The entirety of the case comes in. And then the first part of it is that sexual harassment cases are broadly defined to cover gender, pregnancy, and sexual harassment. These are very important tools for you to understand, again, if you're negotiating your severance package, all right? You want to include an affidavit describing whatever narrative happened to you and include all of the claims that you think that may have happened to you.

Do your research. You can write your narrative, but be informed about what is a claim and what's not a claim because employers can tell. I give enough information in this podcast and on the blog post I put on my website to allow you to figure out what is and is not a claim. And then get that affidavit notarized, send it to the employer, maybe you wanna file with the EEOC

or your state fair employment practice. I would always file with the EEOC by the way, first. Check the box, there's two boxes in the form, and include all of your claims that you have. And then in an email or something to your management or HR, send it to them and try to negotiate your severance package. But in the content of your messaging, indicate that these are not subject to the arbitration

agreement that you allegedly signed, which why I call a forced arbitration agreement. And employers are going to be essentially shitting a brick because here's this new law I've described to you. And they're going to try to push back and you might get some leverage out of this because the ultimate thing the employer is concerned about is the public disclosure of the parade of bad acts, whatever you're reporting in your affidavit, if they hit the public domain of a courthouse. That's what forced arbitration was always about. It was always about trying to secretize their bad acts, cover it up, push you into this domain of arbitration,

which is a hellhole. It's not cheap or fast or whatever. It's just a shit show, a hellhole. And so you want to avoid it. I'm not disparaging arbitration. It sometimes works, of course, but it's not for employees. And it's been used as a way to basically shield bad actors and corporations in a way to manipulate

the situation. So it's a very powerful tool. So please use it wisely, intelligently, and you have this information. Be very powerful to help yourself. So with that said, I'm sharing with you what I'm dealing with and to help you deal with your personal situation. At least you're informed now. Until next week, thank you.

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