sexual harassment arbitration

Ending Arbitration of Sexual Harassment

sexual harassment arbitrationAllegations of sexual harassment and misconduct against movie producers, actors, business leaders, and politicians are on the rise across the country.  So much so, a bipartisan group in Congress is blaming the increased use of nonpublic arbitration for keeping allegations quiet. Senators Kirsten Gillibrand, D-NY and Lindsey Graham, R-SC are leading a group of legislators seeking 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.

Definitions

Sexual Harassment

Sexual harassment can occur when a supervisor demands sexual favors from a subordinate in return for positive job treatment (or threats of negative consequences if the employee refuses to comply). Sexual harassment need not only be based on this type of quid pro quo activity however.

Any unwelcome conduct of a sexual nature which is so severe and pervasive that it creates a hostile work environment is also considered illegal harassment. In addition, it is not just a supervisor who can create a hostile environment – co-workers and even customers can create this atmosphere through inappropriate touching, obscene talk or gestures, graffiti, etc. This type of harassment can be perpetrated by females upon males as well as vice versa, and even among members of the same sex.

A “predispute arbitration agreement” is defined by the proposed bill as “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.” SB 2203 (Gillibrand) 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.

California Employers
 
SB 2203 does not address class action waivers, i.e. requiring that claims be asserted individually and not on a class basis. While class action waivers can exist outside the context of arbitration, 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.

SB 2203 has just begun its journey in the U.S. Congress and it remains to be seen how it will be received. In the meantime, make sure you have anti-harassment policies in place and that you communicate them to employees in as many ways as possible to include handbooks, policy manuals, intranet sites, etc. And while recent media coverage has focused on sexual harassment, your policies should be broad enough to address harassment of any kind, including conduct based on individuals’ race, color, nationality, religion, disability and the like. Lastly, some employees may be unsure about what constitutes “harassment.” Your policies should describe what types of behavior or actions can constitute harassment, and that in no uncertain terms won’t be tolerated in any way.

California Employees

It is important for employees to know that they must make it clear that any conduct of a sexual nature is unwelcome. In other words, offended employees should tell the offender to stop. If the behavior continues, it should be reported to a supervisor or the human resources department in writing. Employees may be tempted to ignore the harassment, hoping it will not continue, but this frequently only makes the situation worse. And, staying quiet about it can potentially impact the employee’s legal rights here in California as well as in other states.

The labor and employment lawyers at Kingsley & Kingsley are well-versed in representing employees throughout California who have been the victim of sexual harassment. Our lawyers represent employees in civil litigation in state and federal courts, and in mediations and administrative hearings before boards and commissions such as the California Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC).

Proving sexual harassment can be challenging, but with the right legal team, it can be done. If you have been a victim of sexual harassment, there are a variety of ways that the qualified lawyers at Kingsley & Kingsley can assist you. Take advantage of a free initial consultation to discuss your specific case by calling the toll free number (888) 500-8469 or by clicking here to contact us regarding your case.

 

Posted in Arbitration, California Lawyers, Harassment, Sexual Harassment and tagged , , .

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