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Brandon Miller Pens Article For ABA Publication On Act Ending Forced Arbitration Of Sexual Assault & Harassment Claims

Los Angeles, Calif. (October 5, 2023) - Lewis Brisbois Associate Brandon Miller recently co-authored an article for the American Bar Association’s Dispute Resolution Magazine entitled “Arbitration in Review: Ending the Forced Arbitration of Sexual Assault and Sexual Harassment,” exploring the impact of recent legislation that amended the Federal Arbitration Act to establish that predispute arbitration agreements are voidable to the extent they cover sexual harassment or sexual assault disputes.

In their article for the magazine’s September edition, Mr. Miller and co-author Robert A. Lusk – an attorney, arbitrator and mediator – tackle the ongoing debate over the law, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which President Biden signed into law in March 2022. They open the article by observing that, from “any objective perspective, the Act can be construed to have both pros and cons, with varying degrees of agreement and disagreement about its ability to address the core issues motivating the passage of the Act, and any spillover effects it may have.” Accordingly, they write, not “everyone agrees about how to move forward in light of these legislative changes or even what consequences the Act will have, either beneficial or adverse.”

Mr. Miller and Mr. Lusk then detail key provisions of the Act. Critically, the Act provides that only an individual or class representative alleging sexual misconduct may initiate an arbitration proceeding. Then, a court – not an arbitrator – decides whether the dispute is arbitrable. While the Act isn’t limited to employment cases, they write, “it will have the greatest impact in this area.” Therefore, “for example, if a plaintiff who is a party to a predispute arbitration agreement with their employer files a sexual harassment lawsuit in federal court, the employer would not be able to stay the lawsuit pending arbitra- tion, at least not over the plaintiff’s objection,” the article states, and the same “would hold true for a class representative in a class or other collective action.”

An in-depth discussion of stakeholders’ arguments for and against the Act follows. Proponents of the law, Mr. Miller and Mr. Lusk state, view it as an “important step towards addressing a glaring power imbalance between employers and employees inherent in many workplace sexual harassment and assault situations.” The Act gives employees alleging sexual harassment and assault an “affirmative choice” between litigation or arbitration. “In fact, this law may result in no changes to the dispute process for employees and employers. Employees may still choose arbitration to save time, to retain more confidentiality than they would have in court, or simply to better suit their needs ,” they write. 

Conversely, Mr. Miller and Mr. Lusk write, critics of the Act contend that “invalidating agreements to arbitrate sexual assault and harassment claims, especially when agreed on as a condition of employment, may result in a flood of exclusions and carveouts for arbitration.” But they note that states like California have passed similar legislation prohibiting noncompete agreements within their borders, without a resulting “deluge of employees wreaking havoc by engaging in unfair competition or stealing employer clients without reprieve.” Thus, the article says, the Act “joins other legislation designed to achieve a social goal rooted in a perceived power imbalance.” 

Mr. Miller and Mr. Lusk conclude the article by observing that the Act’s impact has only begun to be felt. “It will likely take years to see behavioral changes from aggrieved employees. Employees must become aware of their new rights under the FAA, case law must be developed as employers challenge the carveout, and employees must decide if litigation or arbitration is best suited for resolving their sexual harassment and assault claims,” the article states. “Until then, academics, policy makers, and stakeholders will need to closely monitor the Act’s direct and indirect effects. The success of the carveout will likely influence both future changes to the FAA and the use of arbitration in general.”

In addition, Mr. Miller and Mr. Lusk write, as proponents look to add “similar bans on mandatory arbitration in other areas, such as for wage theft, racial discrimination, and unfair labor practices, critics will have to wait and see if the anticipated effects of the Act materialize. Certainly, discussions about arbitration carveouts and prohibitions have only just begun.”

Mr. Miller is a member of Lewis Brisbois’ Labor & Employment Practice based in its Los Angeles office, skilled in alternative dispute resolution, ranging from negotiations, arbitrations, and mediations, which is pivotal in reaching the best result on behalf of his clients.

Read the full article here (sign-up may be required).

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