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What You Need to Avoid Arbitrating Your New Jersey Discrimination or Harassment Case, Even if You Signed an Arbitration Agreement with Your Employer

An employer might have many reasons for desiring to resolve a discrimination or sexual harassment case through arbitration instead of litigation in court. Generally, however, the employer does this because the employer believes that the employee will obtain a more favorable outcome through litigation than arbitration. To that end, many employers request or require their employees to sign an agreement consenting to arbitrate disputes that arise related to the employment relationship, including harm resulting from employment discrimination or sexual harassment. Even if you signed such an agreement, you may still have an opportunity to pursue your case in court instead of arbitration, if you can prove that part or all of your arbitration agreement was invalid or unenforceable. To learn more about your options, be sure to reach out to a knowledgeable New Jersey employment attorney.

D.M.’s case was a recent example of this type of dispute. D.M. accepted a job as a driver for a delivery service in June 2017. The driver signed several documents electronically, including one entitled “Arbitration Agreement.” Ten weeks after D.M.’s employment began, the employer fired her. A month later, the driver filed a Law Against Discrimination action against the employer. She alleged that one of the company’s managers made “sexually provocative comments about” her body and that she was subjected to a hostile work environment based on sex and her sexual orientation.

Unsurprisingly, the employer asked the court to enter an order compelling both sides to arbitrate the dispute. When your employer does that, you may still be able to go to court. To do that, you have to persuade the court that the agreement you signed was not enforceable for one or more reasons. You can assert that there were certain types of fraud or duress, or you can argue that the agreement was unclear and ambiguous. In D.M.’s case, both the trial court and the Appellate Division declared the arbitration agreement to be valid and the employer entitled to demand arbitration, despite the employee’s arguments of a lack of clarity and presence of ambiguity.

The only flaws to which the employee cited in support of her argument were a few sentences with errors like an incorrect cite to the non-existent “Title VII of the Civil Rights Act of 19866.” None of the sentences blurred the clear intent of the agreement to force all disputes related to an employee’s employment into arbitration.

There are, however, certain drafting errors that can allow you to avoid getting trapped by an arbitration agreement. D.M.’s agreement was very clear that it covered all employment-related disputes, including those related to her termination. Some years ago, J.Q. filed a lawsuit against his employer, an accounting firm, arguing that it fired him as a result of age discrimination. That employee’s arbitration agreement said that it covered any dispute that was “in any way related to the terms and conditions” of J.Q.’s employment. Absent from the agreement was language saying anything about covering disputes arising from the termination of J.Q.’s employment. That meant that the agreement was unclear and vague, according to the court. As a result, the employee was not bound by the agreement in that situation and could proceed in court instead of arbitration.

If you’ve been harmed by sexual harassment or discrimination at work, make sure that you don’t get stuck arbitrating your claim if you don’t want to and aren’t legally required to. The experienced New Jersey employment attorneys at Phillips & Associates are here to help you discover your options and pursue the best one. Our team has been helping victims of workplace harassment and discrimination for many years. Reach us online or at (609) 436-9087 today to set up a free and confidential consultation and to find out how we can help you.

More blog posts:

When the Law Does (and Does Not) Require an ‘Unmistakable’ and ‘Affirmative’ Act From You to Signal Your Assent to an Arbitration Agreement in New Jersey, New Jersey Employment Lawyer Blog, Sept. 28, 2018

Know Before You Sign: Your Arbitration Agreement May Keep Your New Jersey Harassment Case from Making it to a Jury, New Jersey Employment Lawyer Blog, April 18, 2018


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