In March 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. This law allows employees who have been sexually assaulted or sexually harassed to bring their claims directly into state or federal court instead of being forced to privately engage in arbitration for sexual harassment cases. This is true even if the employee had signed an arbitration agreement. In order to know why that matters to South Carolina employees, we need to understand what arbitration is and why it matters to your potential employment claims.
What is an Arbitration Agreement for South Carolina Employees?
An employment arbitration agreement is a contract that an employee signs with the employer, often at the beginning of employment. Arbitration agreements can be standalone documents that the employee must sign in order to start work. Or the company can insert an arbitration provision into an employment contract, alongside other contractual obligations, such as non-compete, non-solicit, and non-disclosure provisions. Many employees are required to read, review, and sign dozens or hundreds of pages of documents, policies, and contract on the first day of employment. No reasonable person can possibly absorb and understand all the legal implications of what they are signing under those circumstances, but most employees aren’t even given time to review the contracts with their attorney prior to signing. Some don’t even know that is in option.
Under a traditional employment lawsuit, the employee files a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) first, and then later files a lawsuit in state or federal court. The lawsuit proceeds through the discovery process (exchange of documents, depositions) before heading to trial.
Under arbitration, the employee still files with the EEOC, but once the employee files a lawsuit in court, the company files a motion (a written request) with the court, seeking to have the court dismiss the case and compel the parties to litigate the case through private arbitration.
What Does Private Arbitration Look Like?
Under private arbitration, the employee does not have the right to a jury trial, a judge, or a courtroom. The parties pick an arbitrator (normally an older, more experienced employment lawyer or a retired judge), who then becomes the judge and jury for the case moving forward. The parties have to pay for the arbitrator’s time by the hour, which means the employee will incur additional costs that would not be required in a regular federal or state lawsuit. Other than very limited circumstances, the employee does not have a right to appeal the decision.
The parties typically go through the traditional process of litigation, with depositions, written discovery, and motions. But there is no jury trial at the end to present your case to a panel of your peers, only an arbitrator. A final hearing is held, with the presentation of witnesses, evidence, and legal arguments. Then the arbitrator issues a written decision with his or her ruling on the matter.
So What Does the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 Change for SC Employees?
The #MeToo Movement illustrated just how many sexual harassment and sexual assault claims were being hidden from public view through the process of private forced arbitration for sexual harassment cases. The arbitration process helps protect abusers and prevent their wrongful deeds from coming to light.
As a result, Congress passed this new law in 2022 that changes the existing Federal Arbitration Act to specifically allow victims of sexual assault or sexual harassment to pursue their claims in court, even if they have previously signed an agreement that would require arbitration of sexual harassment cases. The employee can still use the arbitration process if they so desire, but the employee is not required to. This change offers more options to employees in pursuing claims, and also prevents abusers and their enabling companies from hiding the assault and harassment from public view.
Light, after all, brightens all dark places in this world.
What is a “Sexual Harassment Dispute” under the New Law?
“Sexual harassment dispute” is defined as a “dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” Under applicable law, sexual harassment under the federal Title VII of the Civil Rights Act, for instance, would fall under this category. Examples would include sexual jokes, sexual comments, and inappropriate comments about an employee’s appearance. Other more serious forms of harassment include unwanted touching or groping, unwanted sharing of nude pictures, and other sexually charged behavior.
States also have their own sexual harassment laws. South Carolina has its own Human Affairs Act that generally follows Title VII.
Takeaways for South Carolina Employees
The law took effect in March 2022. Any sexual harassment claims that arise after that date are subject to the law and cannot be compelled into secret arbitration for sexual harassment claims. Now, two years later, most sexual harassment claims that I’m looking into would have occurred after that date. After all, sexual harassment claims would need to be filed with the EEOC within 300 days anyway. However, sexual assault claims (involving unwanted physically touching) have a three-year statute of limitations, so determining the date of the assault and moving quickly to protect those rights is still very important for every South Carolina employee facing those circumstances.
Overall, this new law provides a path forward for victims of sexual harassment and assault in South Carolina to hold wrongdoers accountable. If you have any questions about sexual harassment or assault claims, or about the arbitration process, please reach out to our office for a confidential consultation to discuss your legal options.
