Comment on the Show by Sending Mark a Text Message.
Can employers really push for arbitration in sex discrimination cases, flouting federal laws? Join me, Mark, as we dissect this pressing concern and shed light on the ramifications of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. Signed into law by President Biden, this legislation was supposed to be a beacon of hope, but in reality, many employers and their legal teams continue to demand arbitration, blatantly violating the law. We'll also unravel the expansive definition of sexual harassment under the Act, which covers all forms of sex-based and gender-based discrimination, including sexual orientation and pregnancy discrimination. Through my personal encounters and legal confrontations, I underscore the importance of understanding and asserting your rights.
The hidden complexities and inherent pitfalls of arbitration often turn it into a daunting ordeal for employees. Corporations are not shy about leveraging arbitration to protect bad actors and manipulate outcomes in their favor. This episode is your guide to recognizing these corporate tactics, so you're better equipped to navigate these challenges. By staying informed and vigilant, we can collectively challenge unlawful practices and ensure that justice prevails. Tune in to gain the knowledge and empowerment you need to protect your rights in the workplace.
Links:
https://capclaw.com/how-to-manage-sexual-harassment-cases-after-the-federal-ban-on-forced-arbitration/
https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2022cv06669/584300/70/
If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States.
For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.
Disclaimer: For educational use only, not intended to be legal advice.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:01):
Hey, it's Mark here and welcome back.
Today's episode we're going totalk about employers are still
pushing arbitration of sexdiscrimination cases, in
violation of federal law.
Employers get so used to theirown default employment practices
, like a drug addiction, andthey cannot stop quote-unquote
(00:24):
using, even when it violatesfederal law.
Employers are still demandingemployees who assert sexual
harassment claims must filetheir claims in arbitration,
because they think employers aretoo stupid to understand what
forced arbitration is and whatthe new federal law against
forced arbitration requires.
Shame on them.
(00:45):
On March 3rd 2022, presidentBiden signed into law the
federal ban on forcedarbitration in sexual harassment
and sexual assault cases.
I wrote a blog article aboutthis, entitled how to Manage
Sexual Harassment Cases Afterthe Federal Ban on Forced
Arbitration, and I'll include alink in the show notes below.
(01:07):
I've repeatedly confronted thisissue in several cases, hence
why I'm writing the episode.
Each time, the employer, with apoker-faced demeanor, makes
demands that the employee mustpursue their claims through
arbitration and not in court.
This pisses me off, and againwhy I wrote this episode.
Employers tell me this farcicalquote-unquote after they
(01:32):
receive a copy of the federalcomplaint we are about to file,
which discloses a parade of badacts of sexual harassment,
gender discrimination andpregnancy discrimination by
their management, staff orcoworkers.
Essentially, we draftcomplaints that are an
embarrassment to the company andpose a PR problem, because
(01:53):
that's the only way employerslisten.
Unfortunately, these employersare represented by Season
Employment Law Council, who I'veknown for years, yet they
believe that the new law doesnot apply to the case.
In response, I quickly sendthem the most recent case
decisions from the relevantfederal courts, which indicated
that their clients do not havean argument to stand on and to
(02:17):
the ban on forced arbitrationand sex discrimination cases
controls.
Here are a few courtpronouncements that I have sent
to my colleagues to remind themabout what the law actually
provides Ending forcedarbitration of sexual assault
and sexual harassment act of2021, it's called the EFAA,
(02:39):
which amended the federalarbitration act the FAA
government likes acronyms andwhich President Biden signed
into law on March 3, 2022.
As pertinent here, the EFAAdefines sexual harassment
dispute as a dispute relating tothe conduct that is alleged to
constitute sexual harassmentunder applicable federal, tribal
(03:03):
and state law.
That's the definition, prettybroad At the election of a
person alleging conductconstituting a sexual harassment
dispute.
The EFAA makes pre-disputearbitration agreements
unenforceable with respect to acase which is filed under the
federal, tribal and state lawand relates to the sexual
(03:25):
harassment dispute.
The FAA Federal Arbitration Actwhich was enacted to respond to
widespread judicial hostilityto arbitration agreements,
requires courts to placearbitration agreements on an
equal footing with othercontracts and enforce them
according to their terms.
Sounds straightforward, right?
Well, what this meant, what Ijust read, was the beginning of
(03:50):
the tyrant rule of FAA overemployee rights and basically
secretizing them into federalarbitration claims under the
Federal Arbitration Act andessentially providing cover,
confidentiality, cover for many,many employers for a very long
time.
So employers use them under the, they use arbitration
(04:11):
agreements in general to bringabout the confidentiality or at
least prevent from going intocourt cases that would normally
hit the courthouse steps, andthen you would see it in the
news press.
Employers make two routinearguments to me.
First, if it's not sexualharassment specifically, then
(04:33):
the case goes into arbitration.
Second, if it is a sexualharassment case of some form,
which I'll explain in a moment,then the case will be split in
piecemeal litigation.
The sexual harassment case canstay in court according to the
recent statute that PresidentBiden signed into law, and the
(04:57):
rest of the case will be filedin arbitration.
Fortunately for employers and,fortunately, for employees.
Both arguments fail.
Fail and that is what thecourts have held.
The first one I'm bringing thisto your attention because I'm
confronting it.
I'm shocked that I'm hearing itfrom opposing counsel who bring
(05:20):
it to my attention while we'retrying to negotiate the
settlement, before we're filinga lawsuit.
And it's just remarkable here'sa federal law and employers
with a straight face saying youknow you got to go in
arbitration and this is myreaction to it and I'll make
sure that you, as the listenerand as the employee maybe you're
(05:43):
from management and youunderstand that the law is very,
very clear about this and youknow a ban on forced arbitration
in sexual harassment cases.
It's the law of the land.
So if you see it happening toyou or you see somebody you know
, tell people.
That's the only way the wordgets around and we need to stop
this practice around and we needto stop this practice.
(06:09):
So the first one sexualharassment is broadly defined
under the forced ban, the actending ban on arbitration in
sexual harassment cases.
The term sexual harassment wasnot defined in the statute,
which means it has a broadcoverage to every form of
sex-based and gender-baseddiscrimination.
It's very, very important.
You understand that it's justnot sexual harassment.
This means that sexualorientation claims cannot be
(06:33):
forced into arbitration.
Why?
Because it's a statute or aclaim based upon sex In general.
Further, the term is so broadthat it covers gender
discrimination in general,because sex and gender one and
the same.
It also is so broad to coverevery form of pregnancy
(06:57):
discrimination.
Again, pregnancy involves whatSex of women and men are
obviously not going to getpregnant, but it does cover the
act of the paternal leave by thehusband.
So, again, if there's anylinkages to gender, you have an
(07:20):
issue of the ability to push thecase into court.
Remember, if the claim is rootedin sex, gender, employers
cannot force arbitration incourts.
I'm summarizing what thefederal courts have held around
the country because I had to gothrough this episode several
times and I did the research andcoming back to you and
(07:41):
providing the information.
We also discovered that thecourts will deny a motion to
compel arbitration.
It's the tool that employersuse in state or federal court to
compel arbitration when a caseis filed which the employers
assert that it should have beenfiled in arbitration, and the
(08:01):
courts when they view a casethat has a complaint that has a
claim of hostile workenvironment.
That claim involves obviouslysex discrimination and the mere
presence of the claim in thecomplaint allows the court to
easily qualify the sex-basedclaim as sexual harassment and
deny the arbitration.
So include a hostile workenvironment claim in your case
(08:28):
and also include it in the freecomplaint negotiations you're
having with the employer,because you want to tell them
and send them the message hey,we understand what we're doing
here.
We're telling you this caseisn't going to go public.
Mr Employer, do you want it togo that way?
Because you can't stop us.
Remember, employers can't stopan attorney like myself from
filing a button on a computerand making that case go public
(08:51):
on a court docket.
All right, so they can try tomanipulate the process with
money and shove it in your face,but you got to remember what
the law is here.
So the second aspect of whatemployers try to do is this they
say the entire case is exemptedand allowed to move forward.
(09:12):
Previously employers tried topiecemeal it.
Here's a sex case, you can goforward, but the rest of the
case has to stay behind and pushit into arbitration.
The second issue the employersare trying to shove in my face
and they do is that only the sexgender claims can be asserted
in court, but the rest of thecase must be filed in
(09:33):
arbitration.
Typically under the FederalArbitration Act quote if a
dispute presents multiple claims, some arbitral I knew I was
going to screw this up arbitralmeaning that they're capable of
arbitration Try saying that 10times and some not.
The former must be sent toarbitration, even if this will
lead to piecemeal litigation.
(09:53):
But the FAA's mandate supportmandates in support of its
liberal federal policy favoringarbitration agreements.
That's what the law has beenfor the last 30 plus years.
But the mandates may beoverridden by a contrary
congressional command.
That was a court case site thatI'll include in the show notes.
(10:17):
However, when a complaintpresents a well-pleaded sexual
harassment claim, it makes thearbitration clause unenforceable
.
As to the other claims assertedin the case, it makes the
arbitration of other claimsunenforceable as arbitration and
they have to be included in thecase.
It's a big deal for employersand they're really scared about
(10:39):
that.
Okay, that's why they come upwith this type of behavior.
They give me, after 28 yearsdoing this line of work, trying
to tell me that you know whatthe law is or not, and try to
force an arbitration.
It's bullshit.
It's a clear leverage factorfor employees and you have to
understand.
(11:00):
If you have an arbitrationagreement somewhere in your
personnel file or you sign itelectronically, because they
love to do that check the boxelectronically and they date it.
So try to find out if, throughthe HR portal, if you have an
arbitration agreement and you'reabout to launch or let your
employer know that you have asex discrimination case of some
(11:20):
form, you want to let them knowinternally as you're trying to
negotiate maybe severance, andyou can do this on your own.
You don't need a lawyer to dothis.
You can assert a sexualharassment case, gender case or
a pregnancy case in severancenegotiations.
Make it appear that you havecounsel and tell the employers
(11:41):
you know if it's involvinggender or sex, it's not going to
be subject to arbitration.
So you need to utilize this asa feature of your negotiation
and so is it a so highlyinformed idea or position to
take with the employer?
Yeah, I'm giving you theinformation.
(12:01):
It's free Power is in theinformation you have.
So if I'm doing it on behalf ofmy clients, you should be doing
it on behalf of yourself.
So it's a really huge leveragefactor.
And here's the kicker?
Here's the kicker the use ofthe sex, gender, pregnancy claim
(12:28):
in a case.
And oftentimes people havemultiple claims.
They have race claims, ageclaims, sexual orientation we
already covered that but maybe adisability claim or a feminine
medical leave act claim andmedical leave act claim, all of
those, all of them get includedin the complaint and the
employer can't push you intoforced arbitration, all right.
So it's really an importantthing to understand.
(12:49):
There's no piecemeal here.
The courts are enforcing theban against all of the claims,
even if they're not related tosex, gender, pregnancy.
Okay, so there's a New Yorkfederal court judge named Judge
Engelmeyer who is cited with acase that's getting precedent
(13:10):
and people are following it, andwhat Judge Engelmeyer said is
this about this having theentirety of the case go public
and you know not the piecemeallitigation into private
arbitration.
So Judge Engelmar says this.
He says quote in its operativelanguage the EFAA makes a clear,
makes a pre-dispute arbitrationagreement invalid and
(13:34):
unenforceable with respect to acase which is filed under the
federal, tribal and state lawand relates to sexual harassment
dispute.
This text is clear, he says,unambiguous and decisive as to
the issue here.
It keys the scope of theinvalidation of the arbitration
clause to the entire caserelating to sexual harassment
(13:57):
dispute.
It thus does not limit theinvalidation to the claim or
claims in which that disputeplays a part.
The statutory text of the EFAAmakes the corollary true here.
Congress's choice to amend theFAA the Federal Arbitration Act
directly with text broadlyblocking enforcement of an
(14:19):
arbitration clause with respectto the entire case relating to a
sexual harassment disputereflects its rejection in the
context of the FAA norm ofallowing individual claims in a
lawsuit to be parceled outpiecemeal to arbitrators or
courts, depending on each ofeach claim's arbitrability.
(14:40):
See, I got that right that time.
End quote.
So the bottom line here, folks,is that the employer should
back off their high and mightytwig of a tree stump and stop
violating the federal lawbanning forced arbitration,
because that's what I'm seeingon my end.
This is how blatant employersare, and we're talking about
(15:03):
very large, powerful corporateenterprises without naming names
.
They know who they are becauseI'm talking about them, and this
happened to me recently atleast several times.
And so this twofold approach ofthe latter piecemeal litigation
that's stopped, the entirety ofthe case comes in.
(15:24):
And then the first part of itis that sexual harassment cases
are broadly defined to covergender, pregnancy and sexual
harassment.
These are very important toolsfor you to understand.
Again, if you are negotiatingyour severance package.
All right, you want to includean affidavit describing whatever
(15:47):
narrative happened to you andinclude all of the claims that
you think they may have happenedto you.
Do your research.
You know you could write yournarrative but be informed about
what is a claim and what's not aclaim, because employers can
tell.
I give enough information inthis podcast and on the blog
post I put on my website toallow you to figure out what is
(16:09):
and is not a claim and then getthat affidavit notarized, send
it to the employer.
Maybe you want to file with theEEOC or your state fair
employment practice.
I would always file with theEEOC, by the way, first Check
the box there's two boxes in theform and include all of your
claims that you have, and then,in an email or something to your
(16:34):
management or HR, send it tothem and try to negotiate your
severance package, but in thecontent of your messaging,
indicate that these are notsubject to the arbitration
agreement that you allegedlysigned, which I call a forced
arbitration agreement, andemployers are going to be
essentially shit and a brick,because here's this new law I've
(16:55):
described to you Essentiallyshit and a brick because here's
this new law I've described toyou and they're going to try to
push back and you might get someleverage out of this, because
the ultimate thing the employeris concerned about is the public
disclosure of the parade of badacts, whatever you're reporting
in your affidavit, if they hitthe public domain of a
(17:17):
courthouse.
That's what forced arbitrationwas always about.
It was always about trying tosecretize their bad acts.
Cover it up, push you into thisdomain of arbitration, which is
a hellhole.
It's not cheap or fast orwhatever.
It's just a shit show, ahellhole, and so you want to
avoid it.
I'm not disparaging arbitrationit sometimes works, of course,
(17:39):
but it's not for employees andit's been used as a way to
basically shield bad actors andcorporations in a way that to
manipulate the situation.
So it's a very powerful tool.
So please use it wisely andintelligently and you have this
information.
Be very powerful to helpyourself.
(17:59):
So, with that said, I'm sharingwith you what I'm dealing with
and to help you deal with yourpersonal situation.
At least you're informed now,until next week, thank you.
Hey, it's Mark here and welcome back.
Today's episode we're going totalk about employers are still
pushing arbitration of sexdiscrimination cases, in
violation of federal law.
Employers get so used to theirown default employment practices
, like a drug addiction, andthey cannot stop quote-unquote
(00:24):
using, even when it violatesfederal law.
Employers are still demandingemployees who assert sexual
harassment claims must filetheir claims in arbitration,
because they think employers aretoo stupid to understand what
forced arbitration is and whatthe new federal law against
forced arbitration requires.
Shame on them.
(00:45):
On March 3rd 2022, presidentBiden signed into law the
federal ban on forcedarbitration in sexual harassment
and sexual assault cases.
I wrote a blog article aboutthis, entitled how to Manage
Sexual Harassment Cases Afterthe Federal Ban on Forced
Arbitration, and I'll include alink in the show notes below.
(01:07):
I've repeatedly confronted thisissue in several cases, hence
why I'm writing the episode.
Each time, the employer, with apoker-faced demeanor, makes
demands that the employee mustpursue their claims through
arbitration and not in court.
This pisses me off, and againwhy I wrote this episode.
Employers tell me this farcicalquote-unquote after they
(01:32):
receive a copy of the federalcomplaint we are about to file,
which discloses a parade of badacts of sexual harassment,
gender discrimination andpregnancy discrimination by
their management, staff orcoworkers.
Essentially, we draftcomplaints that are an
embarrassment to the company andpose a PR problem, because
(01:53):
that's the only way employerslisten.
Unfortunately, these employersare represented by Season
Employment Law Council, who I'veknown for years, yet they
believe that the new law doesnot apply to the case.
In response, I quickly sendthem the most recent case
decisions from the relevantfederal courts, which indicated
that their clients do not havean argument to stand on and to
(02:17):
the ban on forced arbitrationand sex discrimination cases
controls.
Here are a few courtpronouncements that I have sent
to my colleagues to remind themabout what the law actually
provides Ending forcedarbitration of sexual assault
and sexual harassment act of2021, it's called the EFAA,
(02:39):
which amended the federalarbitration act the FAA
government likes acronyms andwhich President Biden signed
into law on March 3, 2022.
As pertinent here, the EFAAdefines sexual harassment
dispute as a dispute relating tothe conduct that is alleged to
constitute sexual harassmentunder applicable federal, tribal
(03:03):
and state law.
That's the definition, prettybroad At the election of a
person alleging conductconstituting a sexual harassment
dispute.
The EFAA makes pre-disputearbitration agreements
unenforceable with respect to acase which is filed under the
federal, tribal and state lawand relates to the sexual
(03:25):
harassment dispute.
The FAA Federal Arbitration Actwhich was enacted to respond to
widespread judicial hostilityto arbitration agreements,
requires courts to placearbitration agreements on an
equal footing with othercontracts and enforce them
according to their terms.
Sounds straightforward, right?
Well, what this meant, what Ijust read, was the beginning of
(03:50):
the tyrant rule of FAA overemployee rights and basically
secretizing them into federalarbitration claims under the
Federal Arbitration Act andessentially providing cover,
confidentiality, cover for many,many employers for a very long
time.
So employers use them under the, they use arbitration
(04:11):
agreements in general to bringabout the confidentiality or at
least prevent from going intocourt cases that would normally
hit the courthouse steps, andthen you would see it in the
news press.
Employers make two routinearguments to me.
First, if it's not sexualharassment specifically, then
(04:33):
the case goes into arbitration.
Second, if it is a sexualharassment case of some form,
which I'll explain in a moment,then the case will be split in
piecemeal litigation.
The sexual harassment case canstay in court according to the
recent statute that PresidentBiden signed into law, and the
(04:57):
rest of the case will be filedin arbitration.
Fortunately for employers and,fortunately, for employees.
Both arguments fail.
Fail and that is what thecourts have held.
The first one I'm bringing thisto your attention because I'm
confronting it.
I'm shocked that I'm hearing itfrom opposing counsel who bring
(05:20):
it to my attention while we'retrying to negotiate the
settlement, before we're filinga lawsuit.
And it's just remarkable here'sa federal law and employers
with a straight face saying youknow you got to go in
arbitration and this is myreaction to it and I'll make
sure that you, as the listenerand as the employee maybe you're
(05:43):
from management and youunderstand that the law is very,
very clear about this and youknow a ban on forced arbitration
in sexual harassment cases.
It's the law of the land.
So if you see it happening toyou or you see somebody you know
, tell people.
That's the only way the wordgets around and we need to stop
this practice around and we needto stop this practice.
(06:09):
So the first one sexualharassment is broadly defined
under the forced ban, the actending ban on arbitration in
sexual harassment cases.
The term sexual harassment wasnot defined in the statute,
which means it has a broadcoverage to every form of
sex-based and gender-baseddiscrimination.
It's very, very important.
You understand that it's justnot sexual harassment.
This means that sexualorientation claims cannot be
(06:33):
forced into arbitration.
Why?
Because it's a statute or aclaim based upon sex In general.
Further, the term is so broadthat it covers gender
discrimination in general,because sex and gender one and
the same.
It also is so broad to coverevery form of pregnancy
(06:57):
discrimination.
Again, pregnancy involves whatSex of women and men are
obviously not going to getpregnant, but it does cover the
act of the paternal leave by thehusband.
So, again, if there's anylinkages to gender, you have an
(07:20):
issue of the ability to push thecase into court.
Remember, if the claim is rootedin sex, gender, employers
cannot force arbitration incourts.
I'm summarizing what thefederal courts have held around
the country because I had to gothrough this episode several
times and I did the research andcoming back to you and
(07:41):
providing the information.
We also discovered that thecourts will deny a motion to
compel arbitration.
It's the tool that employersuse in state or federal court to
compel arbitration when a caseis filed which the employers
assert that it should have beenfiled in arbitration, and the
(08:01):
courts when they view a casethat has a complaint that has a
claim of hostile workenvironment.
That claim involves obviouslysex discrimination and the mere
presence of the claim in thecomplaint allows the court to
easily qualify the sex-basedclaim as sexual harassment and
deny the arbitration.
So include a hostile workenvironment claim in your case
(08:28):
and also include it in the freecomplaint negotiations you're
having with the employer,because you want to tell them
and send them the message hey,we understand what we're doing
here.
We're telling you this caseisn't going to go public.
Mr Employer, do you want it togo that way?
Because you can't stop us.
Remember, employers can't stopan attorney like myself from
filing a button on a computerand making that case go public
(08:51):
on a court docket.
All right, so they can try tomanipulate the process with
money and shove it in your face,but you got to remember what
the law is here.
So the second aspect of whatemployers try to do is this they
say the entire case is exemptedand allowed to move forward.
(09:12):
Previously employers tried topiecemeal it.
Here's a sex case, you can goforward, but the rest of the
case has to stay behind and pushit into arbitration.
The second issue the employersare trying to shove in my face
and they do is that only the sexgender claims can be asserted
in court, but the rest of thecase must be filed in
(09:33):
arbitration.
Typically under the FederalArbitration Act quote if a
dispute presents multiple claims, some arbitral I knew I was
going to screw this up arbitralmeaning that they're capable of
arbitration Try saying that 10times and some not.
The former must be sent toarbitration, even if this will
lead to piecemeal litigation.
(09:53):
But the FAA's mandate supportmandates in support of its
liberal federal policy favoringarbitration agreements.
That's what the law has beenfor the last 30 plus years.
But the mandates may beoverridden by a contrary
congressional command.
That was a court case site thatI'll include in the show notes.
(10:17):
However, when a complaintpresents a well-pleaded sexual
harassment claim, it makes thearbitration clause unenforceable
.
As to the other claims assertedin the case, it makes the
arbitration of other claimsunenforceable as arbitration and
they have to be included in thecase.
It's a big deal for employersand they're really scared about
(10:39):
that.
Okay, that's why they come upwith this type of behavior.
They give me, after 28 yearsdoing this line of work, trying
to tell me that you know whatthe law is or not, and try to
force an arbitration.
It's bullshit.
It's a clear leverage factorfor employees and you have to
understand.
(11:00):
If you have an arbitrationagreement somewhere in your
personnel file or you sign itelectronically, because they
love to do that check the boxelectronically and they date it.
So try to find out if, throughthe HR portal, if you have an
arbitration agreement and you'reabout to launch or let your
employer know that you have asex discrimination case of some
(11:20):
form, you want to let them knowinternally as you're trying to
negotiate maybe severance, andyou can do this on your own.
You don't need a lawyer to dothis.
You can assert a sexualharassment case, gender case or
a pregnancy case in severancenegotiations.
Make it appear that you havecounsel and tell the employers
(11:41):
you know if it's involvinggender or sex, it's not going to
be subject to arbitration.
So you need to utilize this asa feature of your negotiation
and so is it a so highlyinformed idea or position to
take with the employer?
Yeah, I'm giving you theinformation.
(12:01):
It's free Power is in theinformation you have.
So if I'm doing it on behalf ofmy clients, you should be doing
it on behalf of yourself.
So it's a really huge leveragefactor.
And here's the kicker?
Here's the kicker the use ofthe sex, gender, pregnancy claim
(12:28):
in a case.
And oftentimes people havemultiple claims.
They have race claims, ageclaims, sexual orientation we
already covered that but maybe adisability claim or a feminine
medical leave act claim andmedical leave act claim, all of
those, all of them get includedin the complaint and the
employer can't push you intoforced arbitration, all right.
So it's really an importantthing to understand.
(12:49):
There's no piecemeal here.
The courts are enforcing theban against all of the claims,
even if they're not related tosex, gender, pregnancy.
Okay, so there's a New Yorkfederal court judge named Judge
Engelmeyer who is cited with acase that's getting precedent
(13:10):
and people are following it, andwhat Judge Engelmeyer said is
this about this having theentirety of the case go public
and you know not the piecemeallitigation into private
arbitration.
So Judge Engelmar says this.
He says quote in its operativelanguage the EFAA makes a clear,
makes a pre-dispute arbitrationagreement invalid and
(13:34):
unenforceable with respect to acase which is filed under the
federal, tribal and state lawand relates to sexual harassment
dispute.
This text is clear, he says,unambiguous and decisive as to
the issue here.
It keys the scope of theinvalidation of the arbitration
clause to the entire caserelating to sexual harassment
(13:57):
dispute.
It thus does not limit theinvalidation to the claim or
claims in which that disputeplays a part.
The statutory text of the EFAAmakes the corollary true here.
Congress's choice to amend theFAA the Federal Arbitration Act
directly with text broadlyblocking enforcement of an
(14:19):
arbitration clause with respectto the entire case relating to a
sexual harassment disputereflects its rejection in the
context of the FAA norm ofallowing individual claims in a
lawsuit to be parceled outpiecemeal to arbitrators or
courts, depending on each ofeach claim's arbitrability.
(14:40):
See, I got that right that time.
End quote.
So the bottom line here, folks,is that the employer should
back off their high and mightytwig of a tree stump and stop
violating the federal lawbanning forced arbitration,
because that's what I'm seeingon my end.
This is how blatant employersare, and we're talking about
(15:03):
very large, powerful corporateenterprises without naming names
.
They know who they are becauseI'm talking about them, and this
happened to me recently atleast several times.
And so this twofold approach ofthe latter piecemeal litigation
that's stopped, the entirety ofthe case comes in.
(15:24):
And then the first part of itis that sexual harassment cases
are broadly defined to covergender, pregnancy and sexual
harassment.
These are very important toolsfor you to understand.
Again, if you are negotiatingyour severance package.
All right, you want to includean affidavit describing whatever
(15:47):
narrative happened to you andinclude all of the claims that
you think they may have happenedto you.
Do your research.
You know you could write yournarrative but be informed about
what is a claim and what's not aclaim, because employers can
tell.
I give enough information inthis podcast and on the blog
post I put on my website toallow you to figure out what is
(16:09):
and is not a claim and then getthat affidavit notarized, send
it to the employer.
Maybe you want to file with theEEOC or your state fair
employment practice.
I would always file with theEEOC, by the way, first Check
the box there's two boxes in theform and include all of your
claims that you have, and then,in an email or something to your
(16:34):
management or HR, send it tothem and try to negotiate your
severance package, but in thecontent of your messaging,
indicate that these are notsubject to the arbitration
agreement that you allegedlysigned, which I call a forced
arbitration agreement, andemployers are going to be
essentially shit and a brick,because here's this new law I've
(16:55):
described to you Essentiallyshit and a brick because here's
this new law I've described toyou and they're going to try to
push back and you might get someleverage out of this, because
the ultimate thing the employeris concerned about is the public
disclosure of the parade of badacts, whatever you're reporting
in your affidavit, if they hitthe public domain of a
(17:17):
courthouse.
That's what forced arbitrationwas always about.
It was always about trying tosecretize their bad acts.
Cover it up, push you into thisdomain of arbitration, which is
a hellhole.
It's not cheap or fast orwhatever.
It's just a shit show, ahellhole, and so you want to
avoid it.
I'm not disparaging arbitrationit sometimes works, of course,
(17:39):
but it's not for employees andit's been used as a way to
basically shield bad actors andcorporations in a way that to
manipulate the situation.
So it's a very powerful tool.
So please use it wisely andintelligently and you have this
information.
Be very powerful to helpyourself.
(17:59):
So, with that said, I'm sharingwith you what I'm dealing with
and to help you deal with yourpersonal situation.
At least you're informed now,until next week, thank you.
Popular Podcasts
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
24/7 News: The Latest
The latest news in 4 minutes updated every hour, every day.
Crime Junkie
Does hearing about a true crime case always leave you scouring the internet for the truth behind the story? Dive into your next mystery with Crime Junkie. Every Monday, join your host Ashley Flowers as she unravels all the details of infamous and underreported true crime cases with her best friend Brit Prawat. From cold cases to missing persons and heroes in our community who seek justice, Crime Junkie is your destination for theories and stories you won’t hear anywhere else. Whether you're a seasoned true crime enthusiast or new to the genre, you'll find yourself on the edge of your seat awaiting a new episode every Monday. If you can never get enough true crime... Congratulations, you’ve found your people. Follow to join a community of Crime Junkies! Crime Junkie is presented by audiochuck Media Company.