Updated Sunday, April 20, 2014 as of 10:18 PM ET
Sexual Harassment Suits: Arbitration Is Not a Given
I want to file a lawsuit for sexual harassment against my employer. My attorney says it has to go to FINRA arbitration, but that's the last place I want to be. Can't I file my case in court?

Anonymous, via email

FINRA Rule 13201 provides that a claim alleging employment discrimination, including sexual harassment, in violation of a statute, is not required to be arbitrated. However, the rule further states that "such a claim may be arbitrated only if the parties have agreed to arbitrate it, either before or after the dispute arose." The first question, then, is whether your employment agreement contains a pre-dispute arbitration clause specifically providing for arbitration of discrimination and sexual harassment claims. If the arbitration clause is broad with language such as "any and all disputes," "related to" and "arising out of," the question becomes one for a court (or in some jurisdictions for the arbitrators) to decide based on your state's laws (or those of the state in the choice of law provision of your contract). Some jurisdictions hold that a broad arbitration clause would not necessarily include sexual harassment disputes because they would be outside the scope of the employment agreement. Since a sexual harassment claim could stand on its own, it would not be covered by the arbitration clause and could be brought in court. Each state will treat this differently, and you may want to get a second opinion from other legal counsel on your state's precedent.   more »
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