Got sex-bias arbitration agreements? New legislation would ban them

Posted December 12, 2017

The sea of sexual harassment fallout isn’t restricted to high-profile individuals, or even events. In light of the recent wave of incidents, a bill was recently introduced in Congress that would essentially void forced pre-dispute arbitration agreements in the workplace in the cases of sexual harassment and gender discrimination under Title VII of the Civil Rights Act.

The Ending Forced Arbitration of Sexual Harassment Act was introduced by Congresswoman Cheri Bustos and US Senator Kirsten Gillibrand on December 6. It would amend the Federal Arbitration Act. It has bipartisan support.

Some employers require employees to sign a mandatory arbitration agreement before an issue even arises, and the agreement generally prohibits the employees from being able to take the employer to court. Instead, the employee and employer work it out in a more private setting. Employees, however, are more likely to win cases that go to trial than cases that go through the arbitration process.

The purported basis of the bill would be to help prevent sexual harassment by forcing the issue out into the open in a court. The bill, however, would also apply to any sex discrimination issue, including wage disputes and pregnancy accommodations.

Should this bill become law, employers would need to revisit any arbitration agreements that relate to sex discrimination. It would become effective upon signature into law.

This article was written by Darlene M. Clabault of J. J. Keller & Associates, Inc.

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