New landmark legislation ensures workplace victims of sexual harassment or sexual assault can have their days in court — regardless of whatever clauses may be folded into their employment contracts.
During Sexual Assault Awareness Month, we wanted to highlight this new federal protection for workers.
Last month, President Joe Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which passed with bipartisan support. In a nutshell, when there are allegations of sexual assault or harassment, any forced arbitration clauses (often included in employment contracts) are unenforceable. That means victims can pursue litigation, and companies can’t sweep misconduct under the rug in private arbitration. Of course, a victim still has the option to choose arbitration.
A figurehead of the legislation has been Gretchen Carlson, a former Fox News host who sued the cable news network’s then-CEO for sexual harassment in 2016. Before her lawyer came up with the strategy of suing Roger Ailes personally, Carlson’s hands had been tied by a forced arbitration clause that prevented legal action against the network.
Carlson settled her case for $20 million, and a nondisclosure agreement keeps her from sharing details. But Carlson’s suit unleashed a wave of other sexual harassment allegations at Fox News and throughout the media, and Ailes — who denied all claims against him — ultimately was ousted as chairman and CEO.
The new amendment to the Federal Arbitration Act covers any arbitration or joint-action waiver, whenever it was signed and under whatever level of law (federal, tribal or state).
The act even went so far as to specify that any disputes about whether the new law applies will be settled under federal law by a court, not by an arbitrator.
While business groups laud the speed and cost-efficiency of arbitration, victims often find that it ties their hands and gives the employer the upper hand. They can’t get their days in court — and they have no way to appeal poor arbitration outcomes. California has been battling mandatory arbitration clauses on a broad basis.
At the act’s signing, Vice President Kamala Harris praised the legislation, emphasizing that it applies retroactively to invalidate every forced arbitration agreement in cases of sexual assault.
“Forced arbitration silences survivors of sexual assault and harassment,” she said. “It shields predators instead of holding them accountable and gives corporations a powerful tool to hide abuse and misconduct. And it compels the people of our nation — and most often the women of our nation — to sign away one of their most fundamental rights: the right to seek justice in court.”
If you’ve faced sexual harassment or sexual assault at work, the experienced employment lawyers at Keller Grover can help. We offer free consultations to help you understand your rights, protections and options. In more than 25 years litigating fraud and employment cases, we have recovered hundreds of millions of dollars for clients and class members.