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56 AGs tell congressional leaders to ban arbitration of sexual harassment claims

By Pamela Wolf, J.D.

The attorneys general from the states, the District of Columbia, and five territories of the United States—56 in total—have sent a letter to House and Senate leadership on both sides of the aisle, pressing them to pass legislation that would eliminate mandatory arbitration agreements imposed by employers when sexual harassment claims are raised by employees. This action is aimed at ensuring that victims have the right to access federal or state courts to pursue justice.

Take-it-or-leave-it forced arbitration. In a February 12 letter, the AGs noted that access to the judicial system is a fundamental right of all Americans, yet many employers require that employees, as a condition of employment, sign arbitration agreements mandating that sexual harassment claims be resolved through private arbitration instead of court. These agreements also come with “secrecy” requirements—nondisclosure provisions.

Moreover, the AGs continued, arbitration requirements often are set forth in clauses found within the “fine print” of lengthy employment contracts and are typically presented in boilerplate “take-it-or-leave-it” fashion by the employers. “As a consequence, many employees will not even recognize that they are bound by arbitration clauses until they have been sexually harassed and attempt to bring suit,” according to the AGs.

Arbitration inadequate. Arbitration may not be the right forum for handling sexual harassment claims, according to the AGs. “While there may be benefits to arbitration provisions in other contexts, they do not extend to sexual harassment claims,” the top lawyers wrote. “Victims of such serious misconduct should not be constrained to pursue relief from decision makers who are not trained as judges, are not qualified to act as courts of law, and are not positioned to ensure that such victims are accorded both procedural and substantive due process.”

Ending culture of silence. The AGs also pointed to one of the ways in which the scales of justice are tipped toward alleged harassers. “Additional concerns arise from the secrecy requirements of arbitration clauses, which disserve the public interest by keeping both the harassment complaints and any settlements confidential,” the AGs continued. “This veil of secrecy may then prevent other persons similarly situated from learning of the harassment claims so that they, too, might pursue relief. Ending mandatory arbitration of sexual harassment claims would help to put a stop to the culture of silence that protects perpetrators at the cost of their victims.”

The AGs praised Microsoft for the company’s support of legislation aimed at ensuring that sexual harassment complainants get their day in court and for discontinuing Microsoft’s own use of mandatory arbitration in sexual harassment claims.

Forced Arbitration of Sexual Harassment Act. In December 2017, Microsoft announced its support of the Forced Arbitration of Sexual Harassment Act of 2017 (S. 2203), introduced on December 6 by a bipartisan group of five Democratic and two Republican senators. The same bill (H.R. 4734) was introduced in the House on January 22. The proposed legislation provides that “no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a sex discrimination dispute,” which means “a dispute between an employer and employee arising out of conduct that would form the basis of a claim based on sex under Title VII.” If enacted, the arbitration ban would apply to all Title VII-covered employers.

The Forced Arbitration of Sexual Harassment Act would not apply to any arbitration provision in a collective bargaining agreement, provided that the arbitration provision does not have the effect of waiving employee rights to seek judicial enforcement of a right arising under a provision of the U.S. Constitution, a State constitution, a federal or state statute, or a public policy arising therefrom.

“Congress today has both opportunity and cause to champion the rights of victims of sexual harassment in the workplace by enacting legislation to free them from the injustice of forced arbitration and secrecy when it comes to seeking redress for egregious misconduct condemned by all concerned Americans. … we strongly support appropriately-tailored legislation to ensure that sexual harassment victims have a right to their day in court,” the AGs wrote to the congressional leaders.