Arbitration instead of litigation remains an option for employees who allege sexual harassment, despite a recent law banning the enforcement of pre-dispute pacts for sexual-harassment and sexual-assault claims.
While an employer can note that this is an option, it should do so carefully.
In describing the potential benefits of arbitration, employers should make sure not to mislead employees about it, said Kevin White, an attorney with Hunton Andrews Kurth in Washington, D.C.
Employee's Choice
"An employer can inform complainants of arbitration as an option, but they can't encourage it," said Jessica Mason, an attorney with Foley & Lardner in Houston.
Usually with sexual harassment cases, the complainant must go through an administrative process, so employers often have advance notice that a claim might be filed before arbitration or in court. "Because of the nature of this process, an employer often has a dialogue with the plaintiff, the complainant or the complainant's counsel before suit is filed," she said.
At this point, the employer may send the arbitration agreement to the complainant directly or to the complainant's lawyer, and say, "This is our arbitration provision. This can apply to your sexual harassment dispute. If you would prefer to proceed in a private forum, this is how you do it," Mason said.
Then if the employee asks, "Do I have to?" the employer should say, "No, it is your choice. This is a choice available to you because I don't know how you feel...
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