A Proskauer Rose partner told a U.S. Equal Employment Opportunity Commission task force on Monday that efforts to restrict workplace arbitration and nondisclosure agreements would be “counterproductive,” harming employees as much as management.

Kathleen McKenna’s testimony highlighted tension over how best to tackle sexual harassment in the workplace in the wake of the #MeToo movement, which has inspired industrywide challenges to practices that employee-advocates say have silenced victims and allowed bad behavior to persist unchecked.

Arbitration provides a neutral and confidential process to resolve harassment complaints, McKenna, a Proskauer partner in New York who represents employers, told EEOC members and experts weighing these issues during a wide-ranging task force meeting that was convened to study sexual harassment in the workplace. Prohibiting nondisclosure agreements could lead to an increase in litigation rather than private resolution, McKenna said.

“Bad facts make bad law,” McKenna told the EEOC. “A rise in voices suggests arbitration and resolution with nondisclosure agreements are acts of secrecy with sinister connotations. Respectfully, these conclusions, generally, are incorrect.”

The task force, which issued sexual harassment guidelines in June 2016, heard from a variety of experts on Monday, offering a range of perspectives amid the flood of media reports in recent months highlighting workplace misconduct in Hollywood, the financial arena and other sectors.

Debra Katz of Washington’s Katz, Marshall & Banks, representing workers and whistleblowers, said gaps in federal law hurt workers, “particularly those in low-wage jobs who are vulnerable to retaliation.” Katz said the #MeToo movement “has given unprecedented insight into why women’s harassers have been enabled.”

Across the country, state legislatures and some federal lawmakers have passed laws addressing issues including arbitration processes and nondisclosures. Suzanne Hultin of the National Conference of State Legislatures, testifying Monday, said more than 125 pieces of legislation have been introduced in 32 states that are looking beyond federal regulations to prevent workplace sexual harassment. Hultin said the proposals to address and prevent harassment would continue to be a priority for state legislatures this year and next.

In the eight months since media reports exposed Hollywood producer Harvey Weinstein for alleged sexual harassment and abuse, the EEOC said it has not seen an uptick in charges filed in this area.

EEOC chair Victoria Lipnic and Chai Feldblum, a commissioner, suggested that the number of incoming complaints is not necessarily a measure of the success or failure of the movement. The commissioners said anecdotal evidence suggests employees ever more are using internal complaint processes at companies. A rise in internal reporting could show victims are less fearful of coming forward and of retaliation consequences and that it could take more time before disputes reach the EEOC.

Feldblum said it’s unclear whether she and Lipnic would see eye to eye on how best to reach a position on arbitration and nondisclosure agreements.

Lipnic is currently the sole Republican on the commission. Feldblum, who was nominated for another five-year position by the Trump administration, and Charlotte Burrows are the Democratic members. Trump administration nominees Janet Dhillon, former Burlington Stores Inc. general counsel and West Point professor Daniel Gade are awaiting confirmation in the U.S. Senate.

Monday’s discussion came just weeks after a divisive U.S. Supreme Court ruling that upheld the lawfulness of employment agreements that block worker class actions. Workers’ rights groups contend the justices’ ruling could work against the power of employees to collectively sue over alleged harassment.

The EEOC select task force on the study of harassment in the workplace consists of representations of academia and social science, legal practitioners on the plaintiff and defense sides; employer and employee advocacy groups and organized labor. The 2016 report led to an EEOC training program that has been used in more than 200 training sessions for 5,200 employees and supervisors in 18 states.


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