Why it matters
In a letter to congressional leadership, the attorneys general of all 50 states, the District of Columbia and five territories urged lawmakers to enact legislation that would eliminate mandatory arbitration agreements when workers present sexual harassment claims. The letter expressed concern about the use of nondisclosure provisions in cases of sexual harassment, particularly because the arbitration requirement is typically found in “fine print” and “take-it-or-leave-it” language. “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 letter. While the AGs recognized arbitration may provide benefits in other contexts, it is not the right fit for sexual harassment claims, they said, as it effectuates a disservice to the public interest by keeping both the harassment complaints and any settlements confidential. “[W]e strongly support appropriately-tailored language to ensure that sexual harassment victims have a right to their day in court,” the AGs said.
Detailed discussion
The #MeToo movement continues, with state attorneys general throwing their support behind legislation to end arbitration agreements in workplace situations involving sexual harassment. In December, Sens. Kirsten Gillibrand (D-N.Y.) and Lindsey Graham (R-S.C.) introduced the Ending Forced Arbitration of Sexual Harassment Act of 2017.
Senate Bill 2203 states that “no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a sex discrimination dispute,” defined as “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.”
The bill is pending before the Senate Health, Education, Labor, and Pensions Committee. But it received some high-profile backing when the National Association of Attorneys General sent a letter to the leadership of both the Senate and House of Representatives asking “for your support and leadership in enacting needed legislation to protect the victims of sexual harassment in the workplace.”
Many employers require that their employees, as a condition of employment, sign arbitration agreements mandating that sexual harassment claims will be resolved through arbitration instead of judicial proceedings, explained the AGs of all 50 states; the District of Columbia; and the territories of American Samoa, Guam, Northern Mariana Islands, Puerto Rico and the Virgin Islands.
“These arbitration requirements are often set forth in clauses found within the ‘fine print’ of lengthy employment contracts,” the AGs wrote. “Moreover, these clauses typically are 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.”
While there may be benefits to such arbitration provisions in other contexts, they do not extend to sexual harassment claims, according to the letter. “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,” the AGs told lawmakers.
Additional concerns arise with the secrecy of mandatory arbitration provisions, the letter noted, “which disserve the public interest by keeping both the harassment complaints and any settlements confidential. 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 56 AGs praised Microsoft Corp., which recently announced that it will discontinue the use of arbitration requirements with respect to sexual harassment claims and support the federal legislation.
“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 Americans,” the AGs concluded. “We are aware that the Senate and House are considering legislation to address this issue. Whatever form the final version may take, we strongly support appropriately-tailored legislation to ensure that sexual harassment victims have a right to their day in court.”
To read the letter, click here.
