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Employers to Defend More Sexual Harassment Claims in Court as Congress Bars Some Mandatory Arbitration Agreements

February 15, 2022

By Rachel D. Gebaide, Morey Raiskin & Abood Shebib

Under new legislation passed by Congress last week, an employee, despite having signed an agreement with their employer to arbitrate all claims prior to the existence of any actual claim, would have the option to refuse to arbitrate claims of sexual assault or sexual harassment and instead bring those claims in a lawsuit filed in state or federal court, likely before a jury.

Many existing arbitration agreements require employees to submit all future civil claims, including those involving sexual harassment and sexual assault, to private arbitration.

Before passage of the bill, called the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” employees who entered into such arbitration agreements with their employer at the time employment commenced were blocked from later pursuing those claims before a judge or jury in state or federal courts, which are public forums. The bill removes this employer-friendly contractual protection by amending the Federal Arbitration Act to allow an employee who had previously waived the right to participate in a court action to disregard that waiver when it comes to claims of sexual assault or sexual harassment.

President Biden is expected to sign the bill into law shortly, capping a long effort by various lobbyists and activists to end so-called “forced arbitration” in the context of claims involving sexual harassment and assault. In a statement, the Biden Administration supported the bill, calling it “bipartisan, bicameral legislation [that] empowers survivors of sexual assault and sexual harassment by giving them a choice to go to court instead of being forced into arbitration.”

Interestingly, the Biden Administration also noted it looked forward to working with Congress on other “forced arbitration” matters, including arbitration of claims alleging wage theft, unfair labor practices, and race discrimination.

Lowndes will continue to provide updates as legal developments occur and remains available to answer questions concerning arbitration agreements. Employers should revisit their arbitration policies and provisions, including any arbitration agreements or clauses currently in use and consult with counsel concerning the impact of the bill.

Please contact any Lowndes Labor and Employment Law attorney to discuss any arbitration policies you have, as well as any other employment law issues impacting your business.

This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.
Rachel

Rachel D. Gebaide is a member of the firm’s Executive Committee and chair of the Labor and Employment Law Group. She is an experienced employment litigator and adviser, counseling companies in the management of their human resources issues.


Rachel regularly represents employers in federal and state courts and before administrative agencies in defending against claims involving allegations of employment discrimination and violations of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), and other employment laws. She also defends discrimination claims arising under the Fair Housing Act.  

In addition to her litigation practice, Rachel drafts and reviews employee handbooks, employment agreements, non-competition agreements, separation agreements, and other personnel documents. She regularly advises clients regarding workplace issues and compliance with the FMLA, FLSA, WARN Act, the Affordable Care Act, and other employment laws. Rachel also has extensive experience in conducting independent investigations. 

A frequent speaker, Rachel often writes articles on developing issues in labor and employment law for client-focused publications, legal industry news outlets, and the firm’s employment law blog

Rachel is a member of the Labor and Employment Law Sections of the American Bar Association and the Federal Bar Association. She is also a member of the Orange County Bar Association, having served as Chair of the Labor and Employment Law Committee. Rachel is active in the Litigation and Employment Law Group of Meritas, a global alliance of independent law firms. 

She also serves as Executive Vice President of Congregation Ohev Shalom and Vice President, Legal of TOP Jewish Foundation. 

Morey

A Florida Supreme Court Certified Circuit Civil Mediator, Morey Raiskin works in the firm’s Labor & Employment Group.


Over the past 38 years, Morey has represented management of both large and small employers. He has successfully litigated cases in state and federal courts and represented clients in administrative proceedings involving the EEOC, DOL and FCHR. Morey also serves as an advisor to his clients, counseling them on virtually any workplace issue they may confront.

Morey develops non-compete and employment agreements, personnel policies, employment application forms, employee handbooks, and counsels clients on wage and hour, discrimination, WARN Act planning and union avoidance strategies. He litigates these same issues in state and federal courts or in administrative proceedings before the EEOC, U.S. Department of Labor or the Florida Commission on Human Relations.

Morey began practicing law in Las Vegas, Nevada, before moving to Orlando in 1984. In 1986, he accepted an in-house opportunity with a diversified publisher, Harcourt Brace Jovanovich, eventually becoming Lead Labor and Employment Counsel and Administrative Vice President of its wholly-owned subsidiary, Sea World. In 1990, Morey returned to private practice and has served in a myriad of roles, including as a shareholder and chair of the Labor and Employment Law Group at Lowndes from 1990—2012.


Abood

Abood Shebib is an attorney in the firm’s Labor and Employment Group. He primarily focuses his practice on representing employers in complex employment litigation matters, including matters involving the Fair Labor Standards Act (FLSA); Title VII of the Civil Rights Act of 1964; the Fair Credit Reporting Act (FCRA); the Americans with Disabilities Act (ADA); the Age Discrimination in Employment Act (ADEA); and the Family Medical Leave Act (FMLA). He works with a wide range of clients, from individuals and small businesses to Fortune 100 companies.

Abood has extensive experience handling all aspects of the employment litigation process in both state and federal court. In addition to preparing dispositive motions, including motions for summary judgment and motions to dismiss, taking and defending depositions, and arguing motions in court, he regularly conducts investigations and responds to charges of discrimination before the Employment Opportunity Commission (EEOC) and the Florida Commission on Human Relations (FCHR). Abood counsels clients on litigation avoidance strategies, as well as assisting with settlements and releases and the termination and discipline of employees.

With a background in commercial litigation, Abood also has experience advising clients on matters involving business litigation, trademark litigation and contract disputes in federal and state court.

Abood earned his undergraduate degree in Biology from the University of Arkansas and his law degree cum laude from the University of Florida Levin College of Law. While in law school, he served as a judicial intern to Magistrate Judge Monte C. Richardson of the U.S. District Court for the Middle District of Florida, Jacksonville Division and as a certified legal intern in the Office of the Public Defender for the Eighth Judicial Circuit. He was also an intern in the Office of the Vice President and General Counsel for the University of Florida. Shortly after graduating from law school, Abood interned with Judge James S. Moody in the U.S. District Court for the Middle District of Florida, Tampa Division. 

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