Eric Bachman was recently interviewed on “The Why” news program to discuss the interplay between arbitration agreements and sexual harassment and employment discrimination cases.
What is arbitration?
When parties agree to arbitrate, it generally means they’ve agreed not file a case in court. Instead, their legal dispute will be heard by a private, neutral, third party (the arbitrator). The arbitrator will hear each side’s evidence and arguments and then making a ruling. The arbitrator’s decision is generally binding on the parties and enforceable in court. Arbitration can take many different forms so it’s important to know what rules apply if you have signed an arbitration agreement at your job.
Over the last several decades, a big shift has occurred where employment-related claims, including sexual harassment, are increasingly forced to bypass the public court system and are instead resolved in a private, usually confidential, setting. This shift toward private arbitration affects employees of all stripes: from fast food workers to corporate executives.
Why does it matter if I signed an arbitration agreement?
A big difference exists between filing your case publicly in court versus proceeding in arbitration. For example:
- unlike in court, no jury of your peers will decide your case in arbitration
- instead, a private, third-party individual (often paid for by the employer) will rule on the case
- arbitration generally occurs in private with strict confidentiality rules in place
- in court, on the other hand, most proceedings are public
- the discovery phase, in which you develop the facts necessary to prove your case, is usually much more limited in arbitration; and
- to the extent an appeal process exists in arbitration, it is usually far narrower than what is available in court
How arbitration impacts sexual harassment and employment discrimination cases
Coupled with restrictions about discussing salary, the increased use of independent contractors (who typically have less legal rights than full-time employees), and confidentiality agreements, the prevalence of mandatory arbitration agreements has raised concerns that incidents of employment discrimination and sexual harassment are being kept quiet, which would not be as possible if litigated in court.
This lack of accountability, in turn, may embolden (or at least not discourage ) the harasser and the company that employs them to allow discrimination and harassment to fester on the job.
Of course, there are some benefits to arbitration and proponents argue that arbitration allows the parties to resolve the claim in a faster and less expensive manner than full-blown litigation in court. Even so, the rise of confidential arbitration agreements to resolve harassment and discrimination claims is an important issue that Congress and employee-rights advocates are keeping a close eye on.
Hiring a proven and effective advocate is critical to obtaining the maximum recovery in an employment discrimination case. Eric Bachman, Chair of the Firm’s Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.
Bachman writes frequently on topics related to promotion discrimination, harassment, and other employment discrimination issues at the Glass Ceiling Discrimination Blog.
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