The EEOC Set to Release Two Reports Comparing Online and In-Person Mediation

By Mylene Chan

The U.S. Equal Employment Opportunity Commission, a federal agency which enforces federal workplace anti-discrimination laws, will release Tuesday two reports on the transition to video mediation from traditional in-person sessions during the course of the pandemic.

The reports’ striking positive view of online ADR points to continued use, post-pandemic.

The EEOC had conducted about 10,000 mediations annually in the past decade–in-person until mid-March 2022, when it transitioned to online dispute resolution due to the Covid-19 outbreak. See “EEOC Mediation Statistics FY 1999 through FY 2020,” at https://bit.ly/38VirmT.

In September 2020, the EEOC commissioned researcher E. Patrick McDermott, a professor of management and legal studies of Franklin P. Perdue School of Business at Salisbury University in Salisbury, Md., with Ruth Obar, a program evaluation scholar based in Manila, Philippines, to conduct an online dispute resolution survey to measure the performance of online mediation against in-person processes.

This survey used the same performance measures employed in previous surveys by the EEOC since 2000 annually to measure participant satisfaction with in-person mediation.

“Our two independent studies of the mediator and participants’ experience in online mediation,  which includes party representatives, leave no doubt that we are seeing the rise of a new and improved model of workplace discrimination mediation,” said McDermott. He added, “Without a playbook, the EEOC mediation program National Coordinator, Stephen Ichniowski,  the District Office ADR Program Managers, and the many program mediators transitioned successfully from in-person to online mediation.  This program’s success and the data should be considered in future dispute resolution design in the courts, administrative agencies, and private models.”

The new releases covering the two studies, “Equal Employment Opportunity Commission Mediators’ Perception of Remote Mediation and Comparisons to In-Person Mediation” and “The Equal Employment Opportunity Commission Mediation Participants Experience in Online Mediation and Comparison to In-Person Mediation,” are expected to be released here Tuesday morning. [UPDATE: The studies were released Wednesday, June 1, and can be accessed directly here.] They indicate that most of the survey participants prefer online mediation over in-person mediation, and that they believe procedural fairness, distributive justice, and access to justice are greater in online mediation. 

Here are the key findings:

  • 92% of charging parties and 98% of employers would conduct EEOC online mediation again.
  • 86% of charging parties and 94% of employers believe that EEOC’s online mediation procedures are fair.
  • 82% of charging parties and 91% of employers regard the overall online mediation as fair.
  • 60% of charging parties and 72% of employers are satisfied with the outcome of the online mediation, a rate higher than the same measure taken for in-person mediation previously. 
  • Nearly 70% of the participants prefer online mediation to in-person mediation.
  • Online mediation affords significantly greater access to justice because employers are more willing to participate in a mediation done online.
  • Employers report higher satisfaction across procedural and due process measures in online mediation.

The EEOC’s results echo and confirm the views of many practitioners who find Zoom mediation to be a successful model. 

John M. Noble, a Greensburg, Pa., mediator who reports he had 267 2021 mediations, shared his positive experience with Zoom:

Having conducted 564 remote sessions in the first 26 months of this Covid era, the mid-2020 notion that in-person ADR is still “better” than Zoom is now near non-existent. The non-travel benefits alone have proven life-altering: when the session is over, you are home or in the office; no more hotels or trains, planes and automobiles; no weather/dangerous highway issues; plaintiffs are expressly more comfortable in their own homes; defense representatives markedly increase efficiencies–at no added costs–participating from their home or office work-stations, given the routine in-person session down-time.

The participants and shared documents are “closer” to me on screen than in-person and I hear better with the head-set. Remarkably, while five of the eight insisted-upon in-person sessions I reluctantly conducted in 2020-22 did not settle (two of the cases saw no offers!), I have seen record numbers of settlement dollars accepted remotely­-over $450 million and counting. Frankly, my location has become irrelevant as I now Zoom with people from any time zone and I very thankfully no longer travel 12-20 hours a week. Beyond sold: . . . remote ADR is here to stay!

Colin Rule, chief executive officer of Resourceful Internet Solutions Inc., which owns mediate.com, commented,

Zoom has revolutionized the practice of mediation. Many mediators conducted their first online mediation via Zoom during the pandemic, and now they won’t go back.  Video conference mediation has become the new normal, with face-to-face processes the exception–a complete reversal from pre-2019. 

Zoom-based mediation helps parties be at their best; it allows for more flexible mediation processes (with more breaks), and it’s much greener (with fewer car miles and airline flights).  Parties prefer Zoom for mediation because of the cost and convenience, and studies are showing mediation over Zoom is equally as effective as face-to-face mediations.  Zoom is constantly improving their platform, and video and audio quality are certain to get even better over the coming years.  Zoom may be the gateway to more technological innovations for mediation in the near future.

Other mediators see advantages and disadvantages of online mediation and will use it if needed . . . but do not prefer it.  See, e.g., Robert A. Creo, “The Post Pandemic Compromise: Hybrid Mediation!”, 39 Alternatives to the High Cost of Litigation 111 (July/August 2021)  (available at https://bit.ly/3wQaxmZ).  

The two EEOC reports confirm that online mediation is widely accepted by mediators and participants. Online mediation, which was initially deemed as a temporary fix, is likely to continue to become mainstream at the EEOC even after the pandemic recedes.

***

The author is 2022 Founders’ Fellow of Mediators Beyond Borders International. She is a former CPR intern, and has written for and contributed to this CPR Speaks blog and CPR’s newsletter, Alternatives to the High Cost of Litigation.

[END]

Supreme Court Reviews the Role of Prejudice to a Party in Determining Arbitration Waiver

By Russ Bleemer

This morning’s U.S. Supreme Court arbitration arguments in Morgan v. Sundance Inc., No. 21-328, reviewed what appeared to be a simple case of whether a plaintiff needs to show prejudice as a pivotal factor in claiming that a defendant has waived its right to arbitration.

But it wasn’t so simple. The arguments ranged over multiple possible standards for including the factor, as well as how to do so if it stays.

The question of whether the Federal Arbitration Act supports prejudice as a factor in waiving the right to arbitration stood next to evaluating the defendant’s actions for waiver in the arguments, with the petitioner soon attacking whether prejudice should be a part of the determination.

The solution likely will be anything but simple. Today expansive arguments lasted nearly an hour and a half–wiith just two attorneys–showed the Court wrestling with the need and content of a prejudice evaluation that has split the circuits.  The Eighth U.S. Circuit Court of Appeals decision on review today had held that “[a] party waives its right to arbitration if it: (1) knew of an existing right to arbitration; (2) acted inconsistently with that right; and (3) prejudiced the other party by these inconsistent acts.” 

In its summary ahead of the question presented, the Supreme Court noted that eight other federal courts of appeals and most state supreme include the requirement that the waiving party’s inconsistent acts caused prejudice in the waiver analysis, while three federal courts of appeal, and at least four state supreme courts  “do not include prejudice as an essential element of proving waiver of the right to arbitrate.

With nearly everyone in the courtroom stressing the need for a simple evaluation, both sides missed opportunities to offer one.  Karla Gilbride, co-Director of the Access to Justice Project at Washington, D.C., a nonprofit public interest law firm Public Justice, and attorney for petitioner Robyn Morgan, compellingly noted that the prejudice requirement was “atextual” and “all over the place.”

But she didn’t draw a bright line by noting that employees would be prejudiced by expending time or money on cases where employers delayed their arbitration requests until after they took litigation steps.

Former U.S. Solicitor General Paul D. Clement, a partner in the Washington office of Kirkland & Ellis, facing Justice Neil Gorsuch’s option that the Court eschew a Federal Arbitration Act analysis and send the case back to the lower court for a pure Iowa state law analysis, said that if that path is taken, the Court instead of offering a ruling, should dismiss Morgan entirely as improvidently granted.

And the Court wasn’t helping the advocates by invoking layers of state contract law doctrines, federal statutes, and case interpretations in order to establish a standard for evaluating waiver and whether to include prejudice.

Every member of the Court had pointed questions for the advocates in today’s arguments.  Justice Clarence Thomas didn’t participate, however; the Court announced Sunday that he had been hospitalized with an infection, but it noted this morning that he would participate in the case based on the filings and the arguments’ transcript.

Petitioner attorney Gilbride opened, with an argument that centered around the case issue of whether the the Eighth Circuit ruling favored arbitration, in violation of AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011), and FAA Sec. 2, which says that arbitration contracts are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

She maintained that the prejudice requirement has become specific to arbitration. She said there was a lot of discussion in the briefs about waiver and default, but the Eighth Circuit should have applied generally applicable Iowa law.  Then, she explained, if it found waiver, the court would still have to assess if the actions of employer Sundance, which owns Taco Bell franchises, were in default of proceeding.

“So whether Sundance’s actions constituted default is a secondary question,” said Gilbride, “not a replacement for the first-order waiver inquiry.”

Gilbride was moving from her FAA Sec. 2 analysis to FAA Sec. 3, and urging the Court to adopt a two-step analysis for evaluating waiving a right to arbitration. She was countering an argument made by Paul Clement in his Court briefs, who maintained that FAA Sec. 3 could be dispositive.

FAA Sec. 3 deals with motions to stay proceedings in favor of arbitration:

If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

“Prejudice,” declared Gilbride, “has no part to play in either of these inquiries.”

Under initial questioning from Chief Justice John G. Roberts Jr. and Justice Elena Kagan, Gilbride offered that the Court could remand for analysis of Iowa’s generally applicable waiver doctrines, but instead the Eighth Circuit looked at federal law and erroneously required prejudice. See Morgan v. Sundance Inc., 992 F.3d 711 (8th Cir. 2021) (available at https://bit.ly/3nqL7sJ). She conceded that prejudice could be a part of the state contract law, and that each case needed individual determination at the trial court level. 

At the same time, she noted that there could be a statutory default under federal law in FAA Sec. 3.

Justice Samuel A. Alito Jr. pressed Gilbride on how state law would affect the analysis if it in some way provided something different for arbitration cases than for other contract cases. She warned that arbitration-specific standards wouldn’t likely survive in analyzing three hypothetical Alito treatments of state law.

Justice Sonia Sotomayor told Gilbride her analysis was confusing, with the FAA Sec. 3 default meshing with FAA Sec. 4 on federal court jurisdiction over parties who refuse to honor arbitration agreements for purposes of compelling the process. Sotomayor appeared uncomfortable with the need to find a federal law default standard under Sec. 3 after finding the state law waiver standard needed for Sec. 2 in Gilbride’s sequential analysis proposal.

Sotomayor summarized, noting, “Some of my colleagues are troubled by the fact that states differ in how they define waiver.  I am troubled by the fact that the circuits define prejudice in different ways.”

At that point, Gilbride offered a bright-line standard. She noted that the requirement is “atextual” and not applied uniformly. “A presumption that a party should raise their defense of arbitration . . . by the time they file their first responsive pleading, by the time of their answer . . . before their answer if they file a motion,” she said, “that would be presumptively enough to get someone not to be in default in proceeding.”

The analysis Gilbride proposed, countered Chief Justice Roberts, will “increase the complexity and delay in arbitration proceedings.  . . . [It is] creating a whole new battleground before you even get to arbitration about whether or not there’s been . . waiver under state law. It seems quite contrary to the policy behind the FAA.”

Gilbride quickly countered that the prejudice requirement “actually increases delay and increases the sort of skirmishing in court . . . before anyone resorts to the arbitral forum that the FAA was designed eliminate.

In response to a comment by Justice Stephen G. Breyer that delay cases are fact intensive, Public Justice’s Karla Gilbride insisted that the analysis isn’t “any more complicated than questions about . . . who is bound by the contract or whether a particular dispute fall within the terms of the contract.  . . . State courts and federal courts applying state law answer those questions . . . within the parameters of the FAA all the time . . . without anything seeming to have ground to a halt.”

* * *

Sundance’s Paul Clement said that his client wasn’t in default under FAA Sec. 3, because there was no violation of a contract or a law. “[U]under all relevant state law doctrines, one has to show prejudice before a contractual right is lost because you litigated or waited too long to assert it,” he said at the outset, adding, “The most straightforward way to affirm the decision below is to apply Section 3 and its stay absent default direction.”

Client Sundance, Clement explained, moved under FAA Sec. 3 to stay the litigation, and “it is not in violation of any contractual deadline, any court rule, or any other legal obligation.”

He said the problem wasn’t a waiver by the respondent of its right to arbitrate.  “[W]hat is at issue is simply not asserting a right soon enough,” he said.

Chief Justice Roberts was skeptical, asking, “Waiver plays no role in regard–evaluating that situation at all?”

Clement said that in the absence of filing deadlines, courts will assess a variety of factors–including prejudice to the other side.  

Justice Neil Gorsuch pressed him on assessing a waiver in the absence of an intentional act, and Clement said that the lower court really meant a forefeiture. 

At that point, Gorsuch suggested it would make sense to send the case back for that state law analysis stating that the Eighth Circuit made a mistake using a federal law analysis.  That’s when Clement said that the Court should dismiss the case instead.

“The Eighth Circuit wasn’t saying this is absolutely waiver and ‘that’s why we’re applying this three-factor test,’” explained Clement.

The circuit court, he continued, “applied the three-factor test presumably as–if you go back in their case law . . .– as a gloss on the [FAA Sec. 3] statutory phrase ‘in default.’ And [the appeals panel] said, as a general matter, ‘This is when it’s too late to invoke your right to arbitrate, and we have a three-factor test, and the plaintiff in this case fails under the third factor.’ Importantly, [the Eighth Circuit] didn’t even definitively resolve the second factor [acting inconsistently with the right to arbitration], which is the only thing that actually even goes to an inconsistency that possibly could get to an implied waiver. And there’s not a hint in the decision that they thought they were talking about the explicit waiver that your question alludes to.”

Clement emphasized under tough questioning from Justices Breyer and Kagan that there was no dispute about the arbitration agreement’s existence, and attempts to resolve state law issues preliminarily under such circumstances belong with arbitrators, at one point invoking to Breyer the opinion the justice wrote on arbitrator versus court determinations in Howsam v. Dean Witter Reynolds Inc., 537 U.S. 79 (2002) (available at https://bit.ly/2yiejeh).

“The arbitration agreement is valid,” said Clement. “Nobody questions that.”

Justice Brett Kavanaugh asked whether the failure to raise the arbitration defense to a court action in the first responsive pleading could be a review standard for waiver, but Clement rejected it. He said it wasn’t fair to his client. “[If you want to write an opinion in my client’s favor and suggest to the rules committee that they amend the rules to give clear notice to parties, then I could live with that.”

Clement followed up when Kavanaugh pressed further to note that the line drawn by courts generally isn’t the first responsive pleading, but when there already has been extensive discovery.

Kagan returned to Clement’s point that missing a deadline would satisfy FAA Sec. 3’s requirement that a stay wouldn’t be issued if the party asking for the stay was in default. “Where does this federal common law rule come from as to what counts as default?” she asked.

“It’s a gloss on the statutory phrase ‘in default,’” responded the former solicitor general, “and I think everybody agrees ‘default’ means you violated a legal obligation.”

Justice Sotomayor recounted Sundance’s moves in the matter, and maintained that the company intentionally waived arbitration to see how it would do in litigation, and then reversed course.  Clement resisted, but noted also countered that the strategy was sound and adhered to its arbitration contract.  

He responded:

I think what the parties bargained for here was not just arbitration but bilateral arbitration. And when the other side decides not just to violate the arbitration agreement but to seek a nationwide collective action, I think my client is perfectly within its rights, and it’s what I would advise my client to do under the circumstances[–]don’t make a motion to compel arbitration because you might get a motion to compel nationwide collective arbitration, and pretty much every defendant on the planet agrees that’s the worst of both worlds. So you wait.

Sotomayor said that Sundance should have raised that objection in its motion to compel.

“I suppose we could have,” responded Kirkland’s Paul Clement, “and with the benefit of that additional advice, maybe that’s what I’d tell my clients to do. But I’d still say, OK, at worst, we failed to make a motion. At worst, we’re in the realm of forfeiture, and we still have the ability to make this motion under [FAA] Sec. 3.”

The case is expected to be decided before the Court’s current term ends in June.  The audio of Supreme Court oral arguments, as well as transcripts, can be found here. For more background on Morgan, see Russ Bleemer, “The Supreme Court’s Six-Pack Is Set to Refine Arbitration Practice,” 40 Alternatives 17 (February 2022) (available here), and Mark Kantor, “U.S. Supreme Court Adds an Arbitration Issue: Is Proof of Prejudice Needed to Defeat a Motion to Compel?” CPR Speaks (Nov. 15, 2021) (available here).

* * *

The author edits Alternatives to the High Cost of Litigation for CPR at altnewsletter.com.

[END]

EEOC (and Congress) Rolls Back ADR Policy

By Cai Phillips-Jones

A new U.S. Equal Employment Opportunity Commission rule affecting the agency’s conciliation process became effective Feb. 16, but was repealed via a Senate resolution last month. The May 19 Senate move signals “disapproval”; In order for the rule to be fully overturned, the House will have to vote on the joint resolution, and it must be signed into law by President Biden.

Passage is likely in House, where it awaits consideration. The conciliation process rule, devised under the Trump Administration, drew fire from Democrats because it required more information in early stages of discrimination complaints to be provided to employers, and critics said that could spark retaliations.  Republican supporters said the process supported settlements. See, e.g., Daniel Wiessner, “Senate votes to repeal EEOC settlement rule that ID’ed bias victims,” Reuters (May 19) (available at https://reut.rs/3wcIYCG).

Conciliation is a mediation-like process that aims to increase the speed at which EEOC complainants get relief. Conciliation is conducted by an EEOC investigator rather than a third-party mediator, and takes place after the agency has found evidence of discrimination.

The new rule required the EEOC to share the factual and legal basis of any findings of discrimination with employers about findings of discrimination during the conciliation process. The rule aims to increase the transparency of the conciliation process by providing the employer with more information about their potential liability.

The rule has been viewed as a rollback of the Supreme Court decision in Mach Mining v. EEOC, 575 U.S. 480 (2015) (available at https://bit.ly/2TmuMZg), which limited the amount of information employers received about EEOC discrimination findings.

The Senate vote to overturn the new conciliation rule is the latest example of EEOC rules changing since the Biden administration took office. In addition to this rule change, a conciliation pilot program was ended earlier than expected, in January. The pilot program made a small change to the existing EEOC program by mandating that settlement offers be shared with “appropriate levels of [EEOC] management” before being shared with the respondent.

In January, the EEOC also ended a mediation pilot program, which expanded the use of mediation to additional case types and during more phases of the EEOC administrative process. The mediation pilot program was announced on July 7, 2020, and was originally scheduled to run for six months, ending in January 2021. On Jan. 6, the pilot was extended until September, 2021. But the EEOC reversed course weeks later, and under new Biden Administration EEOC leadership, ended the program on Jan. 27.

In addition to expanding the availability of mediation, the pilot program also increased the use of video-conferencing mediation and electronic feedback from mediation participants. The video conferencing and electronic communication elements will be carried forward from the pilot program, as will the ability for parties to request a mediation at any point during the EEOC process.

It appears that the only major part of the pilot not being continued is the expansion of mediation to additional case types. EEOC cases are individually evaluated for referral to mediation. Some case types, however, including class and systemic charges, have historically been exempted from mediation referrals. During the pilot, these exemptions were suspended. The end of the pilot likely signifies a return to exempt status for these cases.

In the Jan. 27 press release terminating the previously extended pilot but noting the popularity and success of EEOC mediation, the new EEOC Chair, Charlotte A. Burrows, endorsed the continuing use of mediation and conciliation when appropriate. “I strongly support the prompt and voluntary resolution of discrimination charges whenever doing so is consistent with our mission,” she noted in a statement in the release, adding, “The Commission will continue to strengthen its conciliation and mediation programs in accordance with the overarching goal of preventing and remedying discrimination in the workplace.”

Burrows was critical of the pilot program’s implementation by predecessor chair Janet Dhillon. As an EEOC Commissioner last July, Burrows, noting that the program hurt the agency’s traditional enforcement role, said that Chair Dhillon “lacks authority to institute this sweeping change unilaterally, because it contradicts policy formally approved by a Commission vote.” See Paige Smith, “EEOC Alters Mediation Process Under New Temporary Program,” Bloomberg Law (July 7, 2020) (available here).

* * *

The author, a J.D. student who will enter his third year this fall at Yeshiva University’s Benjamin N. Cardozo School of Law in New York, is a 2021 CPR Summer Intern.

[End]

House Passes ‘PRO’ Act, Which Includes Arbitration Restrictions

By Mark Kantor

Yesterday, the proposed Protecting the Right to Organize Act (PRO Act) passed the U.S. House of Representatives by a 225-206 vote, with five Republicans voting Yay and one Democrat voting Nay.  The bill was sent to the U.S. Senate for consideration. 

While much arbitration-related attention in the new Congress has focused on the arbitration-only FAIR Act (for details and links, see Mark Kantor, “House Reintroduces a Proposal to Restrict Arbitration at a ‘Justice Restored’ Hearing,” CPR Speaks (Feb. 12) (available at http://bit.ly/3rze7y1)), the PRO Act contains significant provisions that, if finally enacted, would limit employment arbitration.

Most important, the PRO Act would make it an unfair labor practice for an employer to prevent employees requiring arbitration agreements that obligate an employee “not to pursue, bring, join, litigate, or support any kind of joint, class, or collective claim arising from or relating to the employment of such employee in any forum that, but for such agreement, is of competent jurisdiction.” 

Note that the coverage of the proposed PRO Act encompasses both employment contracts of adhesion and individually negotiated employment contracts, as well as covering individual independent contractors.  See Section 101(b) of the legislation at the act’s link above.

Section 104 of the PRO Act would override Epic Systems v. Lewis,138 S. Ct. 1612 (May 21)(available at https://bit.ly/2rWzAE8), with respect to employment arbitration and class proceedings. 

According to the accompanying section-by-section analysis released by the House, “ . . .  on May 21, 2018, the Supreme Court held in Epic Systems Corp. v. Lewis that … employers may force workers into signing arbitration agreements that waive the right to pursue work-related litigation jointly, collectively or in a class action. This section overturns that decision by explicitly stating that employers may not require employees to waive their right to collective and class action litigation, without regard to union status.”  (The analysis is available at https://bit.ly/2OGrKNj).

The ultimate Senate fate of the PRO Act is linked to the fate of the filibuster.  As Politico states:

But the Protecting the Right to Organize Act, which advanced mostly along party lines, is unlikely to win the 60 votes needed for passage in the narrowly controlled Senate. And already, some union leaders — who hold outsize sway in the Biden administration — are amping up pressure on Democrats to eliminate the filibuster so they can see one of their top priorities enacted.

Eleanor Mueller and Sarah Ferris, “House passes labor overhaul, pitting unions against the filibuster,” Politico (March 9) (available at http://politi.co/3vbgFEu). For the latest on the limited prospects for overturning the filibuster in the Senate, see Burgess Everett, “Anti-filibuster liberals face a Senate math problem,” Politico (March 9) (available at http://politi.co/2ObVou0). 

The filibuster affects large swaths of proposed legislation coming out of the House of Representatives and the Biden Administration agenda. We can anticipate daily media attention to every word any member of Congress or the administration speaks about the topic for some time to come.

The operative PRO Act text in Sec. 104 overriding Epic Systems reads as follows:

(e) Notwithstanding chapter 1 of title 9, United States Code (commonly known as the ‘Federal Arbitration Act’), or any other provision of law, it shall be an unfair labor practice under subsection (a)(1) for any employer—

“(1) to enter into or attempt to enforce any agreement, express or implied, whereby prior to a dispute to which the agreement applies, an employee undertakes or promises not to pursue, bring, join, litigate, or support any kind of joint, class, or collective claim arising from or relating to the employment of such employee in any forum that, but for such agreement, is of competent jurisdiction;

“(2) to coerce an employee into undertaking or promising not to pursue, bring, join, litigate, or support any kind of joint, class, or collective claim arising from or relating to the employment of such employee; or

“(3) to retaliate or threaten to retaliate against an employee for refusing to undertake or promise not to pursue, bring, join, litigate, or support any kind of joint, class, or collective claim arising from or relating to the employment of such employee: Provided, That any agreement that violates this subsection or results from a violation of this subsection shall be to such extent unenforceable and void: Provided further, That this subsection shall not apply to any agreement embodied in or expressly permitted by a contract between an employer and a labor organization.”;

Also, according to the proposal’s section-by-section analysis, PRO Act Section 109(c) would create a private right of action in U.S. federal court if the NLRB fails to pursue a retaliation claim.

(c) Private right to civil action.  If the NLRB does not seek an injunction to protect an employee within 60 days of filing a charge for retaliation against the employee’s right to join a union or engage in protected activity, that employee may bring a  civil  action  in  federal  district  court. The  district  court  may  award  relief  available  to employees who file a charge before the NLRB.

Yesterday’s hearings have gone viral via fiery words backing the act’s passage by Tim Ryan, D., Ohio, who chided Republicans for failing to support workers.  “Heaven forbid we pass something that’s going to help the damn workers in the United States of America!” shouted Ryan in the House chambers, adding, “Heaven forbid we tilt the balance that has been going in the wrong direction for 50 years!”

Republican opponents immediately fired back, saying that the bill would hurt workers by hurting business and the economy. For details, see Katie Shepherd, “Tim Ryan berates GOP over labor bill: ‘Stop talking about Dr. Seuss and start working with us,’” Washington Post (March 10) (available at http://wapo.st/3bz2YaF).

* * *

Mark Kantor is a member of CPR-DR’s Panels of Distinguished Neutrals. Until he retired from Milbank, Tweed, Hadley & McCloy, he was a partner in the firm’s Corporate and Project Finance Groups. He currently serves as an arbitrator and mediator. He teaches as an Adjunct Professor at the Georgetown University Law Center (Recipient, Fahy Award for Outstanding Adjunct Professor). He also is Editor-in-Chief of the online journal Transnational Dispute Management. He is a frequent contributor to CPR Speaks, and this post originally was circulated to a private list serv and adapted with the author’s permission. Alternatives editor Russ Bleemer contributed to the research.

[END]

Predispute Arbitration Would be Barred for Sex Harassment Claims Under Legislative Proposal

By Elena Gurevich

The Federal Arbitration Act is being targeted in Congress in a bill that seeks to ban predispute arbitration in matters involving sexual harassment.

Last month, Sen. Kirsten E. Gillibrand, D., N.Y., along with 13 co-sponsors., introduced U.S. Senate bill S-2203, titled “Ending Forced Arbitration of Sexual Harassment Act of 2017.”

The act makes predispute arbitration agreements unenforceable for sex discrimination disputes.  It would put the responsibility for determining arbitrability on courts, not arbitrators.

The Dec. 6 proposal was immediately referred to the Committee on Health, Education, Labor, and Pensions.  It was introduced in the House by Rep. Cheri Bustos, D. Ill., on Dec. 26, with seven co-sponsors, and sent to the Judiciary Committee.

The act would amend United States Code Title 9—the FAA—by adding a new Chapter 4 “Arbitration of Sex Discrimination Disputes” at the end.

In a proposed Section 401, the legislation would define “predispute arbitration agreement” as “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement,” and “sex discrimination dispute” as “a dispute between an employer and employee arising out of conduct that would form the basis of a claim based on sex under title VII of the Civil Rights Act of 1964 [citation omitted] if the employment were employment by an employer [as defined in the act], regardless of whether a violation of such title VII is alleged.”

Proposed Section 402, on validity and enforceability, states that “no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a sex discrimination dispute.”

According to a blog by employment attorneys at the law firm of Orrick, Herrington & Sutcliffe, if the act is passed into law, it “would not make employment arbitration agreements altogether unenforceable.” Joe Liburt, Allison Riechert Giese and Akasha Perez, “The Ending Forced Arbitration of Sexual Harassment Act: A Legislative Response to #MeToo,” Orrick Employment Law and Litigation blog (Dec. 14) (available at http://bit.ly/2rmpHSx).

The blog post notes that the proposal “would require employers and employees to litigate sexual harassment claims, while leaving unaffected all other arbitration-eligible claims.  This could potentially require employees who bring both harassment and non-harassment legal claims to litigate some claims in court while simultaneously submitting other claims to arbitrators.”

The proposed law, however, does not prohibit workers and employers from agreeing to arbitration after a dispute arises.

The Orrick blog notes that the legislative proposal “has a long journey” before it is signed into law, explaining that “the bill must be assigned to a committee for consideration, withstand debate” and “pass a vote.” The blog post predicts that it “could take months or even years to complete, if ever.”

A USA Today article notes that Congress also “is wrestling with incidents of sexual harassment,” referring to a resolution passed by the Senate that requires sexual harassment training for senators and staff.

The article discusses a bipartisan bill that was introduced in November that would “overhaul the congressional complaint process and provide better protections for accusers.” The article also notes that “other lawmakers are looking to reform the secret process lawmakers have used to settle numerous workplace harassment and discrimination claims.” See Jessica Guynn, “‘Enough is enough’: Gretchen Carlson says bill ending arbitration would break silence in sexual harassment cases,” USA Today (Dec. 6)(available at https://usat.ly/2ynUM6y).

Some companies already have taken action in the light of the proposed legislation. Last month, Microsoft became the first Fortune 100 company to support the bill. Microsoft President and Chief Legal Officer, Brad Smith, stated that the company should “act immediately and not wait for a new law to be passed.” Brad Smith, “Microsoft endorses Senate bill to address sexual harassment,” Microsoft blog (Dec. 19)(available at http://bit.ly/2mR65jR).

The author is a CPR intern.