3 ms·

US senate bill ends forced arbitration in sexual assault and harassment cases

48 points by Geekette 5y ago

jevoten 5y ago
Can someone versed in legal matters explain - why was a bill even necessary? Isn't sexual assault a criminal matter, which, to my understanding, makes it immune to contract law?
- john_moscow 5y ago
  A criminal matter is when a person A does specific physical actions to person B. It usually requires fairly solid proof and serves the purpose of preventing the perpetrator of committing further physical acts. The forced arbitration applies to the civil cases where a group of persons sues the employer seeking damages for creating a "hostile environment" based on feelings and other subjective parameters. It usually ends up with a settlement enriching the plaintiffs, and more corporate paperwork in the style of "we paid $1M for a mandatory course telling our employees that groping is bad" to defend from further lawsuits. It's similar to McDonalds forced to print "caution: the beverage may be hot" on the coffee cups after losing $2.7M to a person that got burned by one [0]. [0] https://en.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Restaurants https://en.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Restau...
  - lesuorac 5y ago
    Did you mean to link to a different article? The wikipedia entry on that case doesn't say at all that "McDonalds forced to print "caution: the beverage may be hot" on the coffee cups". https://en.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Restaurants https://en.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Restau...
  - drekk 5y ago
    She was permanently disfigured by those burns. The coffee was 82-88C or 180-190F. If you went to a diner you'd get coffee 20C colder. And it would still be hot. McDonalds shouldn't have to print a warning, I agree. They should not be allowed to keep their coffee at temperatures that would cause someone to need skin grafts after three seconds of direct contact. It was also settled out of court for an undisclosed sum, something the link in your comment mentions. A judge reduced the 2.7 million in punitive damages to less than half a million before the parties settled out of court. It's a marvel corporate capture of our media is so complete that people are still going to bat for McDonalds over a case so old it could vote. Especially when their reasoning for keeping the coffee at that temperature is to save a couple of pennies.
- staticautomatic 5y ago
  It's complex, but I'll try to explain it succinctly. For starters, this is about civil lawsuits (e.g. suing your employer for money because they caused or allowed sexual assault or harassment in the workplace). As a general matter, you have state laws and federal laws governing whether arbitration is OK, and sometimes they conflict. The Federal Arbitration Act generally allows it. Many states don't, but sometimes only in certain circumstances. As a general rule, whenever there's a direct conflict between state and federal law, federal law wins. However, states can still win if they have an unusually compelling public policy justification. Different states also have different rules about what kinds of cases binding arbitration is OK for. So you end up in situations where the courts say things like "You can't have binding arbitration for sexual assault or harassment claims in such and such state even though they'd otherwise be allowed under federal law, and you can still maybe arbitrate certain kinds of other things, but probably not." That's the case right now in CA (maybe the whole Ninth Circuit). Things can get even messier from there because there's conflicting law on the contractual circumstances under which binding arbitration is OK and whether employees can opt-out and how. Massachusetts, for example, kind of says you can have binding arbitration for sexual assault claims but only if the employment agreement screams FYI WE'RE STILL GONNA MAKE YOU ARBITRATE ASSAULT CLAIMS. Ultimately, an employer with a nationwide workforce may end up in situations where they say things like "If you're in X state, then WE'RE GOING TO ARBITRATE SEXUAL ASSAULT AND HARASSMENT CLAIMS but if we do you get to choose the venue and we'll pay your arbitration costs and we're definitely gonna arbitrate all other kinds of cases except for these few kinds and everyone bears their own costs." Legislation like this is aimed at clarifying the rules on a nationwide basis, partly in response to the courts being divided on what's OK when and where.
tharne 5y ago
This is good news. They need to take the next step now and end forced arbitration altogether. The fact that your employee can twist your arm into giving up your right to access the court system is completely immoral.
- LorenPechtel 5y ago
  This. Arbitration works reasonably well between two weak entities but that's it. The fundamental problem is that anyone who repeatedly goes to arbitration will learn who will favor them in making judgments and will use their strikes to remove the ones least favorable to their position. This rapidly degenerates to a system where the arbiters have to generally rule for the big guys or they won't have any business. When it's big guy vs big guy they'll distribute their decisions between the two--but that will favor the side that's being unreasonable. (Ask for the moon, get half a moon.) The court system is seriously unwieldy but arbitration is seriously unfair except in the case of small fry vs small fry.
jatone 5y ago
the real question is why they didn't end it entirely. but we all know the reason.

48 points by Geekette 5y ago

Can someone versed in legal matters explain - why was a bill even necessary? Isn't sexual assault a criminal matter, which, to my understanding, makes it immune to contract law?

john_moscow 5y ago
A criminal matter is when a person A does specific physical actions to person B. It usually requires fairly solid proof and serves the purpose of preventing the perpetrator of committing further physical acts. The forced arbitration applies to the civil cases where a group of persons sues the employer seeking damages for creating a "hostile environment" based on feelings and other subjective parameters. It usually ends up with a settlement enriching the plaintiffs, and more corporate paperwork in the style of "we paid $1M for a mandatory course telling our employees that groping is bad" to defend from further lawsuits. It's similar to McDonalds forced to print "caution: the beverage may be hot" on the coffee cups after losing $2.7M to a person that got burned by one [0]. [0] https://en.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Restaurants https://en.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Restau...
- lesuorac 5y ago
  Did you mean to link to a different article? The wikipedia entry on that case doesn't say at all that "McDonalds forced to print "caution: the beverage may be hot" on the coffee cups". https://en.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Restaurants https://en.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Restau...
- drekk 5y ago
  She was permanently disfigured by those burns. The coffee was 82-88C or 180-190F. If you went to a diner you'd get coffee 20C colder. And it would still be hot. McDonalds shouldn't have to print a warning, I agree. They should not be allowed to keep their coffee at temperatures that would cause someone to need skin grafts after three seconds of direct contact. It was also settled out of court for an undisclosed sum, something the link in your comment mentions. A judge reduced the 2.7 million in punitive damages to less than half a million before the parties settled out of court. It's a marvel corporate capture of our media is so complete that people are still going to bat for McDonalds over a case so old it could vote. Especially when their reasoning for keeping the coffee at that temperature is to save a couple of pennies.
staticautomatic 5y ago
It's complex, but I'll try to explain it succinctly. For starters, this is about civil lawsuits (e.g. suing your employer for money because they caused or allowed sexual assault or harassment in the workplace). As a general matter, you have state laws and federal laws governing whether arbitration is OK, and sometimes they conflict. The Federal Arbitration Act generally allows it. Many states don't, but sometimes only in certain circumstances. As a general rule, whenever there's a direct conflict between state and federal law, federal law wins. However, states can still win if they have an unusually compelling public policy justification. Different states also have different rules about what kinds of cases binding arbitration is OK for. So you end up in situations where the courts say things like "You can't have binding arbitration for sexual assault or harassment claims in such and such state even though they'd otherwise be allowed under federal law, and you can still maybe arbitrate certain kinds of other things, but probably not." That's the case right now in CA (maybe the whole Ninth Circuit). Things can get even messier from there because there's conflicting law on the contractual circumstances under which binding arbitration is OK and whether employees can opt-out and how. Massachusetts, for example, kind of says you can have binding arbitration for sexual assault claims but only if the employment agreement screams FYI WE'RE STILL GONNA MAKE YOU ARBITRATE ASSAULT CLAIMS. Ultimately, an employer with a nationwide workforce may end up in situations where they say things like "If you're in X state, then WE'RE GOING TO ARBITRATE SEXUAL ASSAULT AND HARASSMENT CLAIMS but if we do you get to choose the venue and we'll pay your arbitration costs and we're definitely gonna arbitrate all other kinds of cases except for these few kinds and everyone bears their own costs." Legislation like this is aimed at clarifying the rules on a nationwide basis, partly in response to the courts being divided on what's OK when and where.

tharne 5y ago

This is good news. They need to take the next step now and end forced arbitration altogether. The fact that your employee can twist your arm into giving up your right to access the court system is completely immoral.

LorenPechtel 5y ago
This. Arbitration works reasonably well between two weak entities but that's it. The fundamental problem is that anyone who repeatedly goes to arbitration will learn who will favor them in making judgments and will use their strikes to remove the ones least favorable to their position. This rapidly degenerates to a system where the arbiters have to generally rule for the big guys or they won't have any business. When it's big guy vs big guy they'll distribute their decisions between the two--but that will favor the side that's being unreasonable. (Ask for the moon, get half a moon.) The court system is seriously unwieldy but arbitration is seriously unfair except in the case of small fry vs small fry.

jatone 5y ago

the real question is why they didn't end it entirely. but we all know the reason.