It’s not often I get to title an employment law update “Love is Blind,” but a recent ruling presents an opportunity to remind employers arbitration provisions in employment agreements are not enforceable when an employment dispute turned litigation pertains directly or indirectly to sex harassment. 

Employers (well, their lawyers) routinely include mandatory binding arbitration provisions in employment agreements, nondisclosure and restrictive covenant agreements, and any other written agreement between the employer and employee if the agreement could create a justiciable dispute between the two.  These provisions are entirely legal if properly drafted, reasonable and not unduly restrictive, and in compliance with the respective state’s law where the agreement is implemented. However, there will be a few instances where an employer is unable to compel arbitration in any litigation instituted by either employee or employer.

One such incident is highlighted after a season five participant brought suit alleging sexual assault by a producer on “Love is Blind,” the hot new reality show where participants supposedly meet and fall in love over weeks of talking to each other from pods where they cannot see each other, live together four weeks after and then marry (or don’t – check out the shocking conclusion in Season 6).

In the suit, the company attempted to enforce mandatory binding arbitration so there would be no jury trial pursuant to a provision in its agreement with the participant, but the attempt was denied under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 or EFAA. While our nation favors resolution by arbitration, and most courts will uphold arbitration provisions in agreements, the EFAA states arbitration cannot be compelled in disputes pertaining to or involving sexual assault or harassment.

The Department of Labor reports over 60 million workers are subject to mandatory binding arbitration, an increase of affected workers to 56% in 2023 from 2% in 1990.  The DOL challenges mandatory binding arbitration provisions in instances where it believes an employer misclassified an employee as an independent contractor, mishandled employee retirement accounts or engaged in other wage practices it believes are unfair, especially when it believes the applicable state laws do not provide the protection employees need.

Employers need to stay vigilant and well-informed about the limitations of arbitration provisions, particularly in matters involving allegations of sexual harassment or misconduct. For questions related to this and other employment law matters, please contact Chris or a member of the HSB Employment Law practice team.