14 February 2018

US law officers seek to end forced arbitrations in workplace sexual harassment

All 56 US attorneys general wrote to Congress seeking legislation to protect victims of sexual harassment in the workplace.

America’s attorneys general urged lawmakers to enact legislation to protect victims of sexual harassment in the workplace.
All 56 signed a letter to US Senate and House of Representatives, which said:  ‘Specifically, we seek to ensure these victims’ access to the courts, so that they may pursue justice and obtain appropriate relief free from the impediment of arbitration requirements.’

Access to justice

The letter stated: ‘Access to the judicial system, whether federal or state, is a fundamental right of all Americans. That right should extend fully to persons who have been subjected to sexual harassment in the workplace.’ But it said many employers require their employees to sign arbitration agreements stipulating that sexual harassment claims are resolved through arbitration instead of judicial proceedings. And it said the arbitration requirements are often set out 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.

Rights denied

‘As a consequence, many employees will not even recognise that they are bound by arbitration clauses until they have been sexually harassed and attempt to bring suit,’ it said. Accepting the benefits of arbitration in other contexts, the signatories said: ‘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.’

Veil of secrecy

The letter raised additional concerns arising from the secrecy requirements of arbitration clauses, which it said ‘disserve the public interest by keeping both the harassment complaints and any settlements confidential’. It said: ‘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, it said, would help to put a stop to the ‘culture of silence’ that protects perpetrators at the cost of their victims. The letter said: ‘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.’