Mandatory Arbitration of Employment Disputes: Implications for Policy and Practice

In jurisdictions where mandatory-arbitration policies for employment disputes are enforceable, they can be a useful tool for employers and employees alike

Sexual-Harassment Liability in 1998: Good News or Bad News for Employers and Employees?

In June 1998 the U.S. Supreme Court issued three separate rulings regarding workplace sexual harassment. In an apparent victory for employers, the court ruled in one case that a victim must actually suffer a tangible loss (i.e., a demotion or unwelcome transfer) to establish a case for quid pro quo harassment. The court affirmed, moreover, that employers can absolve themselves of liability in hostile-environment cases by establishing a meaningful and effective policy against sexual harassment. Absent a meaningful policy, however, employers will be liable for a hostile environment created by supervisors. Thus, in another case, the court found an employer liable for workplace harassment because the employer pp. 14-21 failed to disseminate its existing policy and to follow its terms. Finally, in a same-sex harassment case, the court rejected the notion that egregious sexual harassment is per se unlawful, leaving open the possibility that a harasser who treats men and women equally, no matter how badly, could be found not guilty of unlawful behavior. Still, the court made it clear that an employer\u27s best defense against supervisors\u27 sexual-harassment behavior is an effective prevention policy. Consequently, employers should draft a policy that (1) defines sexual harassment; (2) states the company prohibits such conduct; (3) provides a clear procedure for submitting claims, including the names of individuals involved in the resolution process; (4) states that those who complain or cooperate with an investigation will not be retaliated against; and (5) is disseminated to all new employees when they join the company, reissued to all employees each year, and posted in a conspicuous location in the workplace

In Defense of Mandatory Arbitration of Employment Disputes: Saving the Baby, Tossing Out the Bath Water, and Constructing a New Sink In the Process

[Excerpt] In its 1991 Gilmer v. Interstate/Johnson Lane Corp.decision, the Supreme Court held that employers could require as a condition of employment that employees agree to arbitrate their Age Discrimination in Employment Act ("ADEA") claims unless the employees could prove that Congress had "evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue." Subsequently, lower courts extended Gilmer to cover other discrimination claims, including those arising under Title VII of the Civil Rights Act of 1964("Title VII") and the Americans with Disabilities Act("ADA"). In its 1998 Duffield v. Robertson Stephens & Co. decision, the Ninth Circuit held that the Civil Rights Act of 1991 (the "1991 Act") prohibits mandatory arbitration agreements. Several district courts have also held that the 1991 Act and the ADA prohibit mandatory arbitration.However, in Seus v. John Nuveen & Co., the Third Circuit rejected Duffield and held that the 1991 Act does not prohibit and, in fact, endorses mandatory arbitration. The Fifth Circuit has followed the Seus holding.Tracey27_In_defense_of_mandatory_arbitration.pdf: 337 downloads, before Aug. 1, 2020