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Hostile Workplaces: Workplace Sexual Harassment and Sexual Assault. Giving Women Greater Powers to Hold Employers Responsible for Hostile Workplaces: Congress Passes Bill Banning Forced Arbitration in Workplace Sexual Harassment and Sexual Assault.

Congress approved legislation

On February 10th, 2022, Congress approved legislation that would bar the application of forced arbitration on workplace sexual harassment and sexual assault claims, sending the bill to President Biden for signature after it had been overwhelmingly approved by the House three days earlier.

This bill takes aim at routine boilerplate disclaimers that businesses require upon accepting positions of employment. Here, prospective employees agree not to exercise their right to full legal recourse, in the event of a hostile workplace, workplace sexual harassment, or sexual assault.

The bill gives employees a choice between going to court or going to arbitration to settle allegations in cases related to sexual harassment or assault. The measure is also retroactive — invalidating any existing forced arbitration clauses in ongoing cases that could make it difficult for any victims to litigate cases against their employers.

Arbitration, a rigged game

Instead of a potentially publicly damaging lawsuit where losses and jury awards could be catastrophic, the corporate employer seeks to adjudicate claims of sexual abuse in the shadowed halls of arbitration, where arbitration judges, because of the very nature of the incentive scheme involved, are far more likely to be biased on behalf of the corporate client over the aggrieved employee. Arbitration is a rigged game, where the employer usually wins over the aggrieved employee.

Both liberal and conservative sides of the aisle supported this bill, which gives victims of sexual harassment and sexual assault the right to bring their claim in state or federal court even if they had previously signed an agreement as a condition of their employment that barred lawsuits in favor of arbitration.

Can I Sue My Employer If I Signed an Arbitration Agreement?

Until the passage of this new law, no, you can’t sue your employer in court if you signed an arbitration agreement.

If your employment contract includes an employment arbitration clause, then it means you agreed not to pursue any legal action against your employer in court. Instead, any disputes that you have with your employer must be settled through a costly and rigged process known as arbitration.

Arbitration is one of the alternative dispute resolution processes that serve as an alternative to filing a lawsuit. It often has many different implications than a full-blown case before a judge or jury.

60 million employees chained to binding arbitration agreements

It is estimated that about sixty million American employees are controlled by these arbitration agreements, which have attracted significant ire following the #MeToo movement. Forced arbitration functions as a structural bar to adequately exposing and punishing sexual abusers and harassers, by allowing corporate employers to maintain a hush-hush environment advantageous to repeat high-performing offenders.

Arbitration agreements for sexual harassment or sexual abuse are not enforceable under the new law

In addition to providing an avenue for employees to pursue litigation instead of arbitration, employers who attempt to argue that an employee’s right to do so is barred by an arbitration agreement will now be forced to make that argument in front of a court judge, not an arbitration judge as permitted until now.

Fox News anchor Gretchen Carlson speaks out

Gretchen Carlson, the former Fox News anchor who accused Roger Ailes, the CEO of the Fox News channel, of sexual harassment more than five years ago, learned of the forced arbitration clause in her contract. Carlson, pursued litigation against Ailes personally and won a settlement, and has been part of the effort to press Congress to change the law. Her story was adapted in the film Bombshell and preceded a number of other high-profile allegations in subsequent years from women against powerful male bosses in the media and entertainment industry.

According to Carlson, “it would also stop bad behavior because the bad actors will know that women’s voices will be heard when they speak up about what’s really happening at work.”

The new law is expected to aid victims

This new law is expected to aid survivors of sexual discrimination, sexual assault, and sexual harassment tremendously – and potentially build greater momentum behind the recent spate of legal action against large corporate employers with the power to pressure potential employees to sign away their rights.

Public justice and accountability will no longer be barred by draconian arbitration measures – if your employer has been fostering a hostile work environment and enabling predatory behavior, that will come out in legal action.

This is yet another encouraging sign that our society is in the middle of a sea change when it comes to the rights and expectations of women participating in the public sphere: we will no longer tolerate sexual assault and harassment as a “consequence” of existing in a female body or something to be endured if the perpetrator is sufficiently important to a business.

Also worth mentioning is the remarkable degree to which this measure was supported even by generally pro-business Republicans; the few who did protest the “overreach” of government into employment contracts did not officially register their complaints.

Dr. Shezad Malik Law Firm investigates sexual harassment and sexual abuse cases

If you or a loved one has suffered from sexual assault, sexual abuse or sexual harassment in the workplace, now is the time to take a stand for justice. Contact Dr. Shezad Malik Law Firm at 214-390-3189 for a compassionate attorney who will help you fight your abuser and hold accountable all of those responsible.

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