Can Crewmembers Avoid Forced Arbitration for Sexual Assault or Harassment Claims?

How Forced Arbitration Can Affect Cruise Ship Crewmembers

Many cruise-ship crewmembers sign employment contracts requiring workplace disputes to be resolved through arbitration. These agreements may require workers to bring claims in a private forum, sometimes in another country and under foreign law.

Arbitration is a private process for resolving legal disputes outside of court. Instead of presenting the case to a judge or jury, the parties typically present their claims to an arbitrator who makes a decision.

For a crewmember who has experienced sexual assault or sexual harassment, forced arbitration can create serious obstacles to pursuing accountability. However, a federal law signed by President Joe Biden on March 3, 2022, may give qualifying crewmembers an important choice: proceed in arbitration or take their case to court.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 amended the federal arbitration law to make certain predispute arbitration agreements and joint-action waivers unenforceable in covered sexual assault and sexual harassment cases if the survivor chooses not to arbitrate.

What the Law Means for Crewmembers

Before this law, cruise lines and other employers often relied on employment agreements requiring workers to resolve claims through arbitration. Crewmember contracts can be especially restrictive and may call for arbitration abroad under international arbitration rules.

Under the Act, a survivor with a qualifying claim may choose whether to arbitrate or pursue the case in court. An employer generally cannot enforce a covered predispute arbitration agreement simply because the worker signed the contract before the alleged misconduct occurred.

The law applies to covered disputes or claims that arose or accrued on or after March 3, 2022, even if the employment agreement was signed earlier.

The Act also affects certain predispute waivers that prevent workers from bringing joint, class, or collective actions. This may be important when multiple crewmembers report similar misconduct, a pattern of harassment, or an employer’s failure to protect workers.

A Potential Path to State or Federal Court

The Act applies to covered cases filed under federal, state, or tribal law. Depending on the circumstances, it may allow a crewmember to pursue a case in federal or state court instead of private arbitration.

Cruise lines may still argue that arbitration is required under maritime law, an international employment contract, or the New York Convention. However, the Ending Forced Arbitration Act may provide qualifying survivors with a basis to challenge enforcement of a predispute arbitration agreement.

Federal courts in South Florida have already considered the Act in cases involving cruise-line employment arbitration provisions, including litigation involving Carnival Corporation. 

Importantly, the Act states that a court, not an arbitrator, decides whether the law applies to an arbitration agreement and the dispute. That can be particularly important when an employer attempts to move a case into arbitration at the beginning of litigation.

Why Going to Court May Offer More Options

Arbitration is generally a private process and may operate differently from a case filed in court. Depending on the circumstances, pursuing a claim in court may provide greater transparency and additional procedural tools for investigating what happened.

A court case may provide access to:

• A judge and, when legally available, a jury
• Public court filings, hearings, and written rulings
• Discovery tools such as document requests, depositions, and subpoenas
• Court oversight of discovery disputes and case deadlines
• The ability to appeal certain rulings
• Opportunities to investigate what the employer knew, prior complaints, safety policies, reporting procedures, and the company's response

Depending on the claims and the applicable law, a survivor may also be able to pursue compensation for medical treatment, lost income, reduced earning capacity, pain and suffering, emotional distress, and other losses.

In appropriate cases, additional remedies or claims may also be available, including punitive damages, attorney’s fees, or claims involving negligent hiring, supervision, retention, or investigation

Important Limits to Understand

The Act does not eliminate every employment arbitration agreement. A case must involve a qualifying sexual assault or sexual harassment dispute, and the dispute or claim generally must have arisen or accrued on or after March 3, 2022.

How the law applies to related claims, such as assault, battery, retaliation, negligent hiring, negligent supervision, or emotional distress, may depend on the allegations and the jurisdiction. Questions involving maritime law, foreign law, venue, and international arbitration agreements can also require a case-specific analysis.

Still, an arbitration clause should not automatically be treated as the final word when a crewmember reports sexual assault or sexual harassment. 

Morgan & Morgan May Be Able to Help

Crewmembers who have experienced sexual assault or harassment should not assume they have no choice but to pursue their claims through private or foreign arbitration. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act may provide qualifying survivors with a path to court.

Morgan & Morgan can review your employment agreement, evaluate the facts and timing of your claim, and determine whether pursuing a case in state or federal court may be an option.

If you or a loved one experienced sexual assault or sexual harassment while working aboard a cruise ship or other vessel, contact Morgan & Morgan for a free and confidential case evaluation.

Disclaimer: This article is for general informational purposes and is not legal advice. Available claims, remedies, and forums depend on the specific facts and applicable law.