As predicted in a previous post, another employer has attempted to expand the recent Supreme Court decision upholding arbitration agreements to quash a potential class action sexual harassment case.
On Tuesday, O’Melveny & Myers, LLP argued before a California federal court that the recent AT&T Mobility v. Concepcion decision compels arbitration in a putative class action brought by a former secretary who alleges sexual harassment. That putative class action is a discrimination case with a spin as the claim is being raised on behalf of employees who previously arbitrated employment claims against the firm under an allegedly unenforceable contract. If O’Melveny’s motion is granted, the arbitration will determine if the previous arbitrations should have been compelled. In the meantime, the recently reintroduced Arbitration Fairness Act of 2011, which would overturn Concepcion is still parked in Committee.
Now is the time for employers to review and revise employment agreements to include arbitration clauses or to consider whether employees should be presented with arbitration agreements.