Can You Sign Away Your Right to Sue for Sexual Harassment?

Yes, it is often the case that you can sign away your right to sue for sexual harassment. This became particularly evident in the countless instances of Dov Charney's inappropriate behavior at American Apparel. Not only did employees agree to arbitrate any disputes, including sexual harassment claims, but they were also restrained from mentioning any negative aspects of Charney or the company.

American Apparel: A Case Study

Take the example of American Apparel, where the company managed to keep many of its incidents under wraps due to the nature of the employment agreements. Many of the employees who argued against the arbitration agreements lost their cases. This highlights the significant constraints placed by such agreements on the rights of employees to seek redress.

Enforceability of Arbitration Agreements

The enforceability of an arbitration agreement largely depends on the specific language used in the employment contract and the nature of the claims being disputed. Each case is unique, and the outcome can vary.

Waiving Arbitration Rights

There are a few ways to challenge an arbitration agreement. One such method is for the plaintiff to argue that the employer has waived its right to arbitrate by initiating court proceedings. For instance, filing for a restraining order can be seen as an act that demonstrates a lack of intent to go through with the arbitration process.

Interpreting Unconscionable Clauses

Another argument that can be made is that the arbitration clause is unconscionable. In one notable case, a judge deemed American Apparel's clause to be just that—unfair and essentially a unilateral agreement where employees were compelled to arbitrate, while the company retained the right to litigate the same claims.

Recent EEOC Suit

The EEOC has also stepped in, filing a lawsuit against the parent company of Applebees and Panera Bread. The case centers around the company's requirement for prospective employees to sign a mandatory arbitration agreement. The EEOC argues that such agreements interfere with employees' rights to file discrimination charges with the EEOC. The requirement that all employment-related claims be determined exclusively by binding arbitration is seen as a violation of federal laws protecting employees' rights.

Here, you can find a copy of the arbitration agreement in the modeling contracts:

A similarly broad agreement can be found here:

It is crucial for employees to understand the limitations and potential consequences of signing such agreements. While companies often tout these clauses as necessary for dispute resolution, they can significantly impact an individual's ability to seek legal recourse.

In conclusion, while it is possible to sign away your right to sue for sexual harassment or other employment-related issues, it is important to carefully consider the implications of such agreements. Employers must ensure that these agreements are transparent, fair, and do not infringe upon the rights of their employees.