Advocates Worry About the Impact of Supreme Court Decision on New York Employees with Sexual Harassment Claims

Asserting a claim for sexual harassment in New York City can be extremely harrowing, even with the city’s progressive employment laws. A claimant might risk professional or personal consequences for speaking out, which is why employees with similar allegations often seek to pool their resources and assert their claims as a group. A recent decision by the U.S. Supreme Court, Epic Systems Corp. v. Lewis, 584 U.S. __ (2018), limits employees’ ability to bring collective actions against their employers in some situations. The case specifically deals with collective arbitration of disputes under the National Labor Relations Act (NLRA), but advocates for people who have experienced sexual harassment worry about the impact of the decision on a wide range of employment claims.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits employment discrimination on the basis of sex and several other factors. The New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-101 et seq., prohibits employment discrimination based on a wide range of factors that includes sex. Both statutes, according to court interpretations, recognize sexual harassment as a form of unlawful sex discrimination. Employees may file complaints of alleged acts like sexual harassment with administrative agencies. Those agencies investigate the claims, and either pursue the claim themselves or grant the complainants the right to sue for damages in court. Many employment agreements, however, contain clauses that require employees to submit any and all disputes to arbitration.

The Federal Arbitration Act (FAA) of 1925, 9 U.S.C. § 1 et seq., encourages the use of arbitration as a private method of dispute resolution. It states that an arbitration clause in a contract “shall be valid, irrevocable, and enforceable,” unless the contract itself is legally unenforceable or invalid. Id. at § 2. Courts have the authority to compel a party to a contract with an arbitration clause to participate in arbitration, or to hold that party in contempt. Courts may also enforce arbitration awards that it finds to be lawful.

In some situations, an arbitration clause may conflict with or limit an employee’s rights under an employment statute like Title VII. This issue gained some attention in 2016 and 2017, when a former television news anchor spoke publicly about alleged sexual harassment by the head of the network, and then filed a lawsuit. The network chairman claimed that she breached her employment contract by not submitting her claims to arbitration. The former anchor reportedly got around the arbitration clause, in a manner of speaking, by suing the chairman individually. She eventually settled the lawsuit for $20 million, but the recent Epic Systems decision might make it difficult for others to repeat her success.

The question before the court in Epic Systems involved whether arbitration clauses in the plaintiffs’ employment contracts, which mandated individual arbitration proceedings, constituted a waiver of the plaintiffs’ right to collective arbitration as a “concerted activity” under the NLRA. See 29 U.S.C. § 157. The court held that the FAA’s enforceability provisions overrode the plaintiffs’ rights under the NLRA. This means that each plaintiff must assert their claims in arbitration individually.

The knowledgeable and experienced employment lawyers at Phillips & Associates represent employees, former employees, and job seekers in New York City. We advocate for our clients’ rights in claims for unlawful workplace practices, such as sex discrimination and sexual harassment. To schedule a free and confidential consultation to see how we can help you, please contact us today online or at (212) 248-7431.

More Blog Posts:

New York Legislature and New York City Council Enact New Sexual Harassment Laws, New York Employment Attorney Blog, June 27, 2018

Nondisparagement Clauses Could Interfere with Ability to Assert New York City Sexual Harassment Claims, New York Employment Attorney Blog, April 23, 2018

New York Lawsuit Seeks Confirmation of Arbitration Award in Favor of Plaintiff Claiming Sex Stereotyping Discrimination, New York Employment Attorney Blog, October 2, 2017

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