The landmark bill to guarantee that workers alleging sexual harassment or sexual assault can pursue lawsuits in court contains an ambiguity about its scope that will have to be resolved through litigation, legal scholars said.
Legislation awaiting President Joe Biden’s signature bars the enforcement of arbitration agreements “with respect to a case” that relates to disputes over alleged sexual harassment or assault. That leaves unclear how courts will handle cases that also include other allegations, like race discrimination or wage-and-hour claims, scholars said.
Courts may read that language broadly to decide that the entire lawsuit remains in court, or narrowly to conclude all non-harassment or non-assault claims go to arbitration, said Imre Szalai, a Loyola University New Orleans law professor who has written extensively about arbitration. Another option is for courts to rule claim-by-claim depending on how closely connected the other allegations are to the alleged harassment or assault, he said.
“It’s going to cause a lot of litigation in court, and that undermines the value of arbitration,” Szalai said.
The ambiguity created by the legislation using “case” rather than “claim” could drive strategic litigation choices as courts wrestle with the scope of the law.
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