Employee Survival Guide® - How to Manage Sexual Harassment Cases After the Federal Ban on Forced Arbitration

Starting point is 00:00:00 Hey, it's Mark here, and welcome to the next edition of the Employee Survival Guide, where I tell you what your employer does not want you to know about, and a lot more. Today, we'll be talking about the topic of how to manage sexual harassment cases after the federal ban on forced arbitration. On February 14, 2022, we reported that Congress passed legislation banning forced arbitration in sexual harassment and sexual assault cases in employment. On March 3, 2022, President Biden signed into law the federal ban on forced arbitration of all sexual harassment and sexual assault cases occurring at work.

Starting point is 00:00:37 The law has a retroactive effect, meaning that it bans any and all prior employment agreements that forced employees into private confidential arbitration. The law did not affect sex and gender discrimination claims. However, according to speeches made by the White House prior to the signing of the bill into law, President Biden has made it clear that his administration will take efforts to enforce arbitration for all employees across all protected classes of employees, including but not limited to race, sex, religion, sexual orientation, age, disability, natural origin, and pregnancy and discrimination. The new law amends the Federal Arbitration Act and makes arbitration a voluntary choice by the employee. Here's five facts you need to know about. Number one, you must have a sexual harassment claim.

Starting point is 00:01:20 Until the federal government bans forced arbitration regarding all forms of employment discrimination, as especially stated in the above speeches, only sexual harassment claims are covered under the new law. Although similar, gender claims are not sexual harassment claims. According to the U.S. Equal Employment Opportunity Commission, sexual harassment is defined as follows. It is unlawful to harass a person because of the person's sex. Harassment can include sexual harassment or unwelcome sexual advances, requests for sexual favors, and other verbal and physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and it can include offensive remarks

Starting point is 00:01:55 about a person's sex. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent and so severe that it creates a hostile or offensive work environment, and when it results in an adverse employment decision, such as a victim being fired or demoted. The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not even an employee of the company. Number two, don't let your employer fool you about your rights. Over the years, I have seen many employers attempt to manipulate

Starting point is 00:02:35 employees about their rights and the employer's obligations on their state and federal law. All employees need to check their employer's human resource portal and employment manual regarding arbitration. The employer may not have updated the company policies and still seeks to enforce the outdated policy. Get informed. Enforce your employer to follow the law regarding the ban on arbitration in sexual harassment and sexual assault cases. Number three, your new leverage and how to use it to get what you want. Forced confidentiality via arbitration was a method used by most employers previously

Starting point is 00:03:08 that buried sexual harassment claims from the public view. When employers required employees to file an arbitration claim, there was no public dissemination of the bad actor's sexual harassment practices. Today, Congress and the President have removed this troublesome implement practice. The new law shifts control over to employees and marks the start of a new era in managing sexual harassment cases. Employees now have enormous leverage over employers to force a settlement to their benefit. Employers do not like publicity about sexual harassment cases in the wake of the Me Too movement. Employees must threaten litigation.

Starting point is 00:03:42 For example, the threat of filing a lawsuit in state or federal court. We routinely draft sexual harassment complaints and send them to the employer's counsel for purposes of promoting settlement negotiations. The removal of forced arbitration practice has now forced many employers to settle out of court with sexual harassment victims because they cannot mandate employees into private confidential arbitration proceedings. This new employee leverage must be viewed on a continuum, as not all sexual harassment cases are alike. On the left side of the spectrum, you have the borderline sexual harassment cases where the employee's liability is questionable, or less than 50-50.

Starting point is 00:04:17 Employers may usually defend these cases and refuse to settle. In the middle are the more serious cases that cast a negative light on the employer's reputation. On the extreme right side of the continuum, we see top-level executives and even C-suite executives being accused of gross sexual harassment. Employers have no choice but to settle these cases, the middle and the right side, or risk a publicity nightmare in an SEC investigation, for example, Activision Blizzard. Number four, filing administrative complaints. If you have a sexual harassment claim, you are required to exhaust your administrative remedies by filing a complaint with the EEOC and the relevant state agency. The EEOC now has a new online complaint filing portal. The filing of the claim stops the clock on the 300-day look-back

Starting point is 00:05:01 period, which is a statute of limitations, a period where adverse employment actions have occurred. Number five, settlement tips. If you've reached the stage of settlement negotiations with your employer, here are a few important tips to help you finalize a settlement under new state laws. In the wake of the Me Too movement, several states, including New York, California, Illinois, New Jersey, and Oregon have passed laws banning forced confidentiality in not only sexual harassment cases, but also employment discrimination cases. For example, New York Statute 5-336 bans confidentiality agreements, also called nondisclosure agreements, and settlement agreements of all employment discrimination claims unless the employee requests such an agreement. This is a huge break from past

Starting point is 00:05:45 practices of covering up bad actor sexual harassment cases and now makes them public. In the past, employers required confidentiality as a condition of the settlement. Today, employees who are presented with confidentiality agreements as a condition of settlement must object in writing to the employer and their counsel stating that they do not require nor prefer a separate confidentiality agreement. Employers will attempt to place part of the settlement money as a consideration for the confidentiality agreement. Employees must object to this illegal use of the settlement money to force them to accept the prohibited confidentiality agreement. Do not expect

Starting point is 00:06:18 the employer and their attorneys to roll over and play fair. If you encounter further resistance, you may want to send an email to the relevant attorneys general for your state and copy opposing counsel. The AG's office is aware of the practice and may get involved to force the employer's adherence to the statute of requirements. If you need more information about the end of forced arbitration and employment discrimination cases, please contact Caring Associates PC on the web. Thank you. Have a great week.

Employee Survival Guide® - How to Manage Sexual Harassment Cases After the Federal Ban on Forced Arbitration

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