For employers, human resources leaders, and employment counsel who rely on arbitration agreements, a federal law on sexual harassment claims keeps changing where those disputes are heard.
Each new court ruling on its scope shifts how much protection a signed agreement provides.
In “Recent Rulings Bring Federal Sexual Harassment Law into Sharper Focus,” Law.com examined appellate decisions interpreting the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA). Victoria Sloan Lin, Member of the Firm of Epstein Becker Green and counsel to employers on workplace investigations and employment litigation, discussed the rulings’ effect on arbitration agreements.
The article reviews decisions from the Second, Sixth, and Ninth Circuits, which together hold that a covered harassment claim can keep an entire lawsuit out of arbitration. Victoria said the rulings bring the statute’s scope closer to definition and answer significant questions about how it should be read.
She focused on what employers should do once a complaint surfaces. “If a workplace complaint comes to an employer’s attention, it’s really important to understand where that complaint is coming from,” she said. “If there are any claims that could be broadly construed as sex discrimination or a sex based hostile work environment ... those concerns could render an otherwise valid arbitration agreement invalid.” The takeaway for employers is that “workplace investigations become even more significant,” Sloan Lin said.
Victoria also pointed to an open question in class and collective wage and hour cases, where one plaintiff has an EFAA claim and others do not. The Second Circuit raised the issue in a footnote without deciding it.
Get in Touch
To discuss how these rulings may affect your organization’s arbitration agreements and the way it handles workplace complaints, contact Victoria Sloan Lin at vsloan@ebglaw.com.
