Exclude sexual offenses from arbitration, ensure employee access to courts

Deborah Pierce, an emergency room doctor, brought a sex discrimination claim against the employer that had fired her. She had evidence that the employer had a pattern of denying women partnerships. However, because she signed an arbitration agreement, she was blocked from court and forced into private arbitration. The arbitrator was not a judge but a corporate lawyer.

When Dr. Pierce showed up one day for a hearing, she noticed the arbitrator having a friendly coffee with the head of the company she was suing. During the proceedings, the employer withheld crucial evidence, including audiotapes it destroyed.  When her lawyers asked the arbitrator to impose sanctions on the defense for destroying evidence, the arbitrator simply fined the defense $1,000 after investigating the matter. The arbitrator ultimately ruled against Dr. Pierce.

A cruise ship employee who said she was drugged, raped and left unconscious in her cabin by two crew members, could not take her employer to civil court over negligence and an unsafe workplace. She had signed an arbitration agreement and could not seek justice in court.

A housekeeper, who signed an arbitration agreement with her employer, regretted it later when he sexually harassed her and she had no legal recourse in court.

The above horror stories were reported by The New York Times in an article detailing the impact of arbitration on regular employees. Indeed, employees may fare better before judges and juries instead of arbitrators.

Arbitration is a procedure to resolve disputes without filing a complaint in court. By signing an employment arbitration agreement, the employee is agreeing to adjudicate any claim against the employer before an arbitrator and not before a judge or a jury. This means the employee cannot sue that employer in court. Unlike court proceedings which are public, an arbitration proceeding is a private process and its results are generally confidential and not disclosed. The parties are bound by the arbitrator’s decision and the losing party cannot appeal.

The use of arbitration in employment disputes, may be problematic, as it is often not a product of negotiation. The company may make the signing of an arbitration agreement a condition of employment. Employees often automatically sign these types of agreements, without understanding the consequences. Nowhere is the impact of arbitration agreements more tragic than in sexual misconduct claims that are denied access to the courts. Since the complaint is not brought in the open, the wrongful conduct may continue to persist.

Addressing this injustice, the National Association of Attorneys General (NAAG) sent a letter to congressional leaders urging that sexual harassment claims be excluded from arbitration, and that victims should be ensured “access to the courts, so that they may pursue justice and obtain appropriate relief free from the impediment of arbitration requirements.”

The state attorneys general acknowledged the harm to employees as they are forced to seek relief from arbitrators who are not trained as judges and who may not have the qualifications to ensure that these victims are accorded due process.

Lastly, the attorneys general, noted that “ending mandatory arbitration of sexual harassment claims would help to put a stop to the culture of silence that protects perpetrators at the cost of their victims.”

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com or our Facebook page Joe Sayas Law. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is the recipient of PABA’s Community Champion Award.]