New Federal Law Ends Forced Arbitration of Workplace Sexual Harassment and Sexual Assault Claims Despite Employment Agreements that Require It

In March 2022, President Biden signed a new bill that ends forced arbitration of sexual assault and harassment claims. Now, employers throughout the country may no longer require employees to arbitrate claims of sexual harassment or sexual assault. The new law is effective for claims that arise or accrue on or after the date the bill was enacted, or March 3, 2022. Employees may not, however, re-open claims that have already been arbitrated.

Many employees have signed employment agreements containing the usual language requiring all employees to waive their rights to join in a class action lawsuit and to arbitrate any disputes they may have with the employer. Such agreements take away employees’ right to trial by a jury of their peers: in arbitration, an attorney typically is the finder of fact. Under this new law, employees with sexual harassment and sexual assault claims are not required to use arbitration as a method to prove a claim but will have the ability to try their cases in open court.

This is seen as a win for workers, but how the law will work is unclear. Texas law strongly favors enforcement of employment agreements. The new law is extremely limited in scope, and sexual harassment and sexual assault claims are often coupled with complaints of retaliation, salary discrimination, racial or ethnic discrimination, breach of contract, and unjust termination. A Black woman may be harassed both because she is a woman and because she is Black. Claims that are not strictly sexually based might still have to be arbitrated, which could make things complicated.

Our Texas Employment Lawyers Have Answers About Sexual Harassment and Sexual Assault

If you have experienced sexual harassment, sexual assault, discrimination, or termination at work or any other form of workplace dispute, reach out to our experienced employment lawyers. Do not suffer in silence. Find relief. Get justice. Click here, fill out and submit the form Contact Kilgore & Kilgore. We will call you. Or you can call us at (214) 949-9099. For information about our legal work in combatting sexual harassment in the workplace, visit this link Protect Your Dignity. For a wider view of our employment law practice click this link Employment Law. We look forward to collaborating with you.

Sexual Activity at Work is Common

According to the EEOC, 25 to 85 percent of women report experiences of sexual harassment at work. Definitions of sexual harassment range widely and include unwanted attention, coercion, sexist and crude comments, offensive behavior, and using pornography at work. This is based just on the reported behavior. Many employees deal with sexual harassment by avoiding the harasser, denying, or downplaying the situation, ignoring, or enduring the abuse. Men who are victims of sexual harassment or assault may be reluctant to report it or seek help. Our employment lawyers put their clients first without judgement or prejudice.

Perils of Arbitration in Employee Claims

Arbitration favors employers. Instead of a hearing before a judge, arbitration takes place in private, in front of a retired judge or lawyer who is often hired by the employer. It would be reasonable to assume that an arbitrator who develops a history of employee-friendly rulings may not be hired again.

The practice of arbitration has proliferated rapidly. It is estimated that over half of non-union private sector employees have signed contracts requiring them to file all complaints through arbitration instead of the courts. Low-wage workers are especially likely to be forced to arbitrate.

Employees win in arbitration only about 20 percent of the time, compared with 60 percent who win for claims filed in court. When employees do win in arbitration, the awards are often much smaller than in court. The average award for an employee in arbitration is $23,548, compared with $143,497 in federal court and $328,008 in state court.

It is also important to recognize that while arbitration is private, it may not allow others who work for the same employer to discover that an endemic and potentially dangerous situation exists. Much of the energy behind the #MeToo movement comes from the fact that making some noise can protect other people, too.

Texas Law – One Hand Gives, but the Other Takes Away

Both Texas Labor Code Chapter 21 and Title VII of the federal Civil Rights Act protect Texas workers from employment discrimination based on sex or sexual harassment. Effective September 2021, an amendment to the existing law expanded the definition of sexual harassment, heightened the standard for an employer’s response to complaints, and placed responsibility on individuals as well as employers for failing to address sexual harassment.

On the other hand, though, in a 2016 overtime pay case, the Fifth Circuit Court of Appeals confirmed that Texas contract law favors the enforcement of arbitration agreements. This was so, even though the plaintiff oil worker had expressly refused to sign the agreement. The court reasoned that he had accepted the arbitration requirement because he continued to show up for work.

Were this a sexual harassment case from after March 2022, federal law would govern, and the plaintiff would have had a right to his day in court. But what about any other claims arising from the same employment situation? It is still too early to see Texas or state court decisions under the new law, but things could get messy.

Our Employment Lawyers Have Answers to Your Questions About Workplace Sexual Harassment

Our experienced lawyers understand how difficult it can be to deal with harassment, discrimination, violence, or any number of other unpleasant situations at work. Contact us when workplace difficulties arise. Reach out to Kilgore & Kilgore for a free review of the facts of your case. Click here to get the conversation started contact Kilgore & Kilgore.

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