Tony Oncidi: On the issue of #MeToo and the current and best way for an employer to respond to those issues, I think there are certain things that are essentially table stakes that all employers need to do before they start considering other options. Number one, they have to make sure that they have all the appropriate policies in place, all of the reporting opportunities that an employee who may be a victim of harassment, or who may have witnessed harassment, can access. Those need to be updated; they need to be state of the art. The best practice when it comes to dealing with allegations of harassment or discrimination, whether it be a #MeToo kind of a claim or otherwise, is to properly, appropriately, and timely investigate the claim. A third thing that many employers are doing now is they’re beginning to consider whether to step away from arbitration.
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The reasons that an employer should not step back from an arbitration agreement that’s already in place and that’s already been executed by somebody who is claiming to have been sexually harassed for example, is number one, it’s a risky form of unilateral disarmament. You’re essentially telling that employee that he or she is free to go to a jury. Number two, you are differentiating between sexual harassment claims, and for example, racial harassment claims, or religious discrimination or sexual orientation or disability. All of these are illegal under both state and federal law. And thirdly, it buys into the argument that there’s something inferior about arbitration. And I think that once the employer goes down that route, whether it’s with respect to a sexual harassment claim or any other kind of claim, it’s going to be very difficult to resurrect the position that arbitration is appropriate for any kind of claim.