On February 10, 2022, Congress voted in favor of the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021”. President Biden is expected to sign the legislation into law in the near future. Just as the title indicates, this Act allows victims of sexual harassment and/or assault in the workplace to file lawsuits in state or federal court, ending the commonly used practice of employers forcing these types of claims into mandatory, confidential arbitrations. The law further renders any prior agreement to waive the right to proceed as a class or joint action unenforceable.
Typically, in Illinois when an employee is subjected to sexual harassment and/or assault at work, he or she will file a charge with the Equal Employment Opportunity Committee and/or the Illinois Department of Human Rights, the state and federal agencies assigned to investigating these types of charges. If the charge is not resolved during that process, he or she will have the right to proceed to file a lawsuit in state or federal court. However, prior to this law’s passage, if the employee had signed an employment agreement prior to the incidents in question, he or she may have waived the right to file a lawsuit in court. Instead, the only option is to proceed to a private, confidential arbitration. It is estimated that over 60 million workers in the United States have waived this right as part of their employment contracts.
Most of the time, employers want to keep these types of lawsuits out of the court system and in private arbitration. These arbitrations typically proceed quickly, allowing for less time to prove the facts, and are less expensive for employers. Arbitrators often award lower damages than judges or juries award. The appeals process is typically much more difficult after arbitration than it is after a trial in court, and most cases end after the arbitrator’s decision has been rendered. If there are multiple victims of sexual harassment and/or assault pursuing their claims against the same employer, they must pursue those claims in separate arbitrations instead of as a class or jointly. Finally, and very importantly, arbitrations are almost always confidential, meaning that neither the general public, nor other victims, will know the outcome of the arbitrations. After the #MeToo movement, this is arguably very important to many employers.
Accordingly, this Act is a needed update to the law for workers. Once this Act is signed into law, any worker with this type of mandatory agreement to arbitrate in their employment contract should be aware that it is unlikely to be upheld for sexual harassment and/or assault charges under this law. This law will apply to all workers with the exception of those claims which are already in active arbitration. The parties can still agree to mediate the claims once they have been alleged, but both parties will need to agree to do so.
Please be aware that this Act only applies to sexual harassment and/or assault in the workplace, not other types of discrimination in the workplace. However, there may be hope that this law will help encourage Congress to step in to help employees with other types of mandatory arbitration agreements as well.
When pursuing sexual harassment and/or assault claims, it is important to consider your rights under Title VII of the Civil Rights Act of 1964, the Illinois Human Right Act, the Illinois Workers’ Compensation Act, as well as potential personal injury claims. The attorneys at Katz, Friedman, Eisenstein, Johnson, Bareck & Bertuca have been representing workers in employment actions, workers’ compensation claims, and personal injury cases for over 50 years. If you have questions regarding sexual harassment and/or assault in the workplace, please contact Katz, Friedman, Eisenstein, Johnson, Bareck & Bertuca so we can answer your questions. To set up a free consultation, please contact us at 800-444-1525.