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Forced arbitration of workplace sexual assault claims is no longer allowed in certain jurisdictions due to a growing recognition of the harm and injustice it causes to employees. The reason is that forced arbitration can be detrimental to employees and can limit their ability to seek justice and hold employers accountable for workplace violations. In the context of workplace sexual assault claims, this process can be particularly harmful to employees who may feel coerced into signing an arbitration agreement as a condition of employment and then find themselves facing a biased arbitrator who is unlikely to take their claims seriously.

What is Forced Arbitration

Forced arbitration is a process where employees are required to waive their right to file a lawsuit and instead must pursue their claims in a private arbitration process, which is typically conducted behind closed doors and without a jury. In addition, the employer often selects the arbitrator, which can lead to bias in favor of the employer.

Why Forced Arbitration is Disfavored

Forced arbitration is disfavored for several reasons. First, is the limitation on rights to appeal. Arbitration awards are generally final and binding, which means that there is limited opportunity for appeal. This can be problematic if the arbitrator makes an error in law or fact or if there is evidence of bias or misconduct. Similarly, by signing an arbitration agreement, employees often waive their right to pursue legal action in court. This means that they are limited in their ability to seek redress for workplace violations and may be forced to accept unfair or inadequate settlements.

Other issues include the lack of transparency and the potential for bias. Arbitration proceedings are usually conducted behind closed doors, without public scrutiny, which means that there is less transparency and accountability compared to court proceedings. This lack of transparency can be particularly harmful in cases where there is a power imbalance between the parties involved.  Also, employers often select the arbitrator, which can lead to bias in favor of the employer. This can result in outcomes that are unfair to employees, especially in cases of workplace sexual harassment or assault, where there is often a power imbalance between the accuser and the accused.

Increased Scrutiny Where Sexual Assault is Involved

The #MeToo movement, which brought attention to the prevalence of workplace sexual harassment and assault, has led to increased scrutiny of forced arbitration clauses in employment contracts. As a result, some jurisdictions have passed laws or regulations that prohibit employers from requiring employees to sign arbitration agreements for sexual harassment and assault claims.

For example, in the United States, the 2021 Consolidated Appropriations Act amended the Federal Arbitration Act to prohibit pre-dispute arbitration agreements for sexual harassment and discrimination claims. In addition, some states, such as California, New York, and Washington, have passed laws that limit the use of forced arbitration for sexual harassment and assault claims. Overall, the movement towards eliminating forced arbitration of workplace sexual assault claims is part of a broader effort to hold employers accountable for creating safe and respectful workplaces for all employees.

For future reference, any agreements executed before the enactment of the End Forced Arbitration of Sexual Assault and Sexual Harassment (“EFASASH”) on March 3, 2022, are still valid and enforceable with regards to sexual assault and sexual harassment claims. The EFASASH only applies prospectively, and at that point the employee can choose whether to arbitrate their claims or render the agreement unenforceable with regards to claims for sexual assault and sexual harassment.

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