Dive Brief:
- A bill introduced in both Houses of Congress would render arbitration clauses unenforceable when it comes to sex discrimination claims, a move aimed at employers who use those clauses to keep sexual harassment claims quiet.
- Such clauses allow accusers to deal with allegations outside of court, explains the Huffington Post, and sometimes include settlements and nondisclosure agreements. Employees are far more likely to win cases that go to trial than cases that go through the arbitration process, according to one of the bill's sponsors.
- Because the bill outlaws arbitration for all sex discrimination claims, however, it also would apply to gender pay discrimination claims and pregnancy discrimination claims, says Robin Shea, a partner at Constangy Brooks, Smith & Prophete LLP.
Dive Insight:
As high-profile sexual harassment claims continue to make headlines, lawmakers are trying to remove the protections that have allowed alleged sexual harassers to pay off accusers for their silence.
Pennsylvania legislators recently introduced a bill that would ban nondisclosure agreements with respect to sexual harassment claims, and other states may well follow suit.
Employers who have relied on arbitration and nondisclosure agreements may need to rethink how they deal with sexual harassment, perhaps by first focusing on culture at all levels. Experts say you should be asking yourself how you can infuse your policy into your culture. And, like any culture shift, this will require buy-in from upper management.
