The recently passed Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act amends the Federal Arbitration Act (FAA). It may impact labor arbitration, perhaps with unintended consequences. Members of the National Academy of Arbitrators, Lise Gelernter and Mark Travis, answer a few questions posed by Ariana Levinson, Professor of Law at University of Louisville Brandeis School of Law, about the potential impact. We hope to continue dialogue about these issues, and we welcome your thoughts. If you have responses to share with us and/or post alongside Arbitrator Gelernter’s and Travis’s responses, please email your responses to Ariana at email@example.com.
The Act states: ‘‘(a) IN GENERAL.—Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute
- Is an action for breach of a collective bargaining agreement (CBA) under LMRA Section 301 one under Federal law? In other words, if an employee has a grievance under the CBA because she has been sexually harassed, can she file a case in federal court, without exhausting the grievance process, for breach of CBA and the duty of fair representation? Or does the language “with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute” mean the law provides the claim for sexual assault or harassment?
- Relatedly, if the union hasn’t clearly and unmistakably waived an employees’ right to bring a discrimination claim, that sexual harassment claim could always go to court, but there is a parallel contractual claim. Does the Act mean the parallel contractual claim also cannot be heard in labor arbitration if the grievant doesn’t want it to, even though it is the union’s claim? Or is the union the person alleging the conduct who can elect to go forward with it or not? Is it insignificant as a practical matter because a union couldn’t likely prevail in arbitration without the grievant’s support anyhow? What if there are multiple grievants, and some wish to arbitrate and others to litigate without arbitrating?
- If a union clearly and unmistakably waived the right to go to court for discrimination claims, is the union “the person” who can elect to go to court instead, or is it the grievant, or possibly both? If it is the grievant’s decision, how, if at all, will this impact unions’ ability to negotiate workplace protections from sexual harassment? Will the union have any right to consult with the grievant or intervene in the case if the grievant elects to proceed to court rather than through the grievance arbitration process?
- Will a covered dispute be only one that a plaintiff can bring for sexual assault or sexual harassment or will it include disputes by grievants who have sexually assaulted or harassed a co-worker and are grieving their discipline or discharge? In other words, is the language “the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute . . .” limited to the survivor of the harassment or does it encompass a person defending against such alleged conduct?
Lise Gelernter’s Response
I think if I were representing a union or employer with a collective bargaining agreement with an arbitration clause, I would argue that the new bill amends only the FAA. The bill says: “Notwithstanding any other provision of this title” that pre-dispute and class action waiver agreements are not “valid or enforceable.” The “title” to which it refers is the FAA, and, the argument would go, has nothing to say about collective bargaining agreements governed by Section 301 of the LMRA. However, the counter-argument would be that the legislation makes all pre-dispute and class action waivers invalid and unenforceable under any law.
So the second argument to defend a CBA’s arbitration clause would be to say: it’s the union that has signed the agreement, not the individual. Therefore, the new legislation does not affect the CBA’s arbitration clause and pursuant to the Supreme Court’s decision in 14 Penn Plaza v. Pyett, those clauses are clearly enforceable and Section 301 of the LMRA authorizes the enforcement of arbitration agreements between unions and management. But of course, there are at least three counter-arguments: 1) the new legislation does not differentiate between waivers in CBAs or individual contracts and applies to all of them; 2) the new legislation authorizes an individual to pursue his or her sexual assault or harassment claims in court despite the Union’s agreement to pursue them in arbitration; and 3) the Supreme Court accepted the parties’ representations in Pyett (I think in error) that the case arose under the FAA and therefore, these new amendments to the FAA render invalid anything in Pyett that would bar an individual union member from pursuing sexual assault or harassment claims in court.
Bottom line, it could be a mess until Congress or the courts clear this up.
Mark C. Travis’s Response
Arbitration Under CBA’s: The main issue I see here is with waivers under Penn Plaza. Currently (since 2009), assuming a clear and unmistakable waiver in the CBA, Penn Plaza would mandate the harassment claim (under Title VII or state law) be arbitrated under the grievance/arbitration provision in the CBA. At first blush, the new statute might appear to trump Penn Plaza. Indeed, the Act provides it applies “[n]otwithstanding any other provision of this title,” i.e. the FAA. It should also be noted that procedurally, Penn Plaza arose by virtue of a motion to compel arbitration under Sections 3 and 4 of the FAA. However, it should also be noted that the court relied extensively on the LMRA and ADEA in its decision. After setting forth the parameters of the collective bargaining process, Justice Thomas wrote at the outset of his analysis:
“As a result, the CBA’s arbitration provision must be honored unless the ADEA itself removes this particular class of grievances from the NLRA’s broad sweep. (Emphasis supplied; citation omitted). It does not. This Court has squarely held that the ADEA does not preclude arbitration of claims brought under the statute.
Thomas was joined by Roberts, Scalia, Alito and Kennedy. Souter; with Stevens, Ginsburg and Breyer in the minority.