Days May be Numbered on Forced Arbitration in Sexual Assault and Harassment Cases

Victims of workplace sexual assault and harassment will now have their day in court.

On February 10, 2022, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, a bill that would end mandatory arbitration of workplace sexual assault and harassment cases and allow vitims to assert their claims in court.  The bill passed with large bipartisan support, and President Biden is expected to sign it into law.

The bill amends the Federal Arbitration Act to bar employers from forcing employees with claims of sexual assault and sexual harassment into private arbitration proceedings designed to silence employees and protect employers from public accountability.  Now, employees who have experienced sexual harassment at work will have the right to seek justice in a public forum.  The bill also forbids predispute joint-action waivers that prohibit employees from participating in a joint, class, or collective action concerning sexual harassment or sexual assault claims.

Why this is Important for the Rights of Working People?

These are major changes that help level the legal playing field between employees and their employers. Arbitration is like a secret, corporate court system. In arbitration, there is no jury, there is no judge, and most of the court system’s rules and safeguards do not apply. The case is decided by an arbitrator, who is most often a corporate attorney paid by the employer. (That’s right: the company accused of violating the law pays the person who decides the case). Arbitrations are almost always confidential, meaning that other women who work with the accused harasser will ever learn of the sexual harassment allegations. Many employers require employees sign mandatory arbitration agreements in order to get hired, usually by including a mandatory arbitration agreement in the barrage of fine-print forms employees sign when joining the company.

Predispute joint-action waivers, which the Bill also bans, are another common limit on employee rights that many companies force employees to accept in order to get hired. Class actions and multi-plaintiff actions are lawsuits where people who have suffered similar injustices at the hands of the same company join forces in a single case. They can be powerful ways of leveling the legal power imbalance between individuals and corporations, which is why companies work so hard to ban them.

As Senator Kirsten Gillibrand (D-NY) noted, the bill is “one of the most significant workplace reforms in history.” Indeed, an estimated 60 million American workers are subject to mandatory employment arbitration procedures prohibiting them from suing their employers for discrimination, wage theft, and other workplace abuses in open court. And mandatory arbitration is more common in industries disproportionately composed of women and African Americans. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act will now give some of these workers the opportunity to take their sexual assault and harassment claims—individually or as a class—to court.

We hope this bill is the first step toward ending forced arbitration for any civil rights or employment dispute.  No worker experiencing discrimination or abuse at the workplace should be hamstrung by fine-print contracts designed to protect wrongdoers and limit employee rights.

Every federal statute that prohibits discrimination in the workplace has an anti-retaliation provision. As such, it is unlawful for an employee to be retaliated against for opposing perceived discrimination or participating in an EEOC investigation regarding such discrimination, including gender discrimination and sexual harassment. In other words, if you believe you were discriminated against and you complained to your supervisor about such discrimination and then the employer took an adverse employment action against you because of that report, that retaliatory act is unlawful. The same is true for co-workers who report discrimination or otherwise provide information regarding discrimination on behalf of a fellow employee. If you successfully demonstrate that your employer unlawfully retaliated against you, you are entitled to lost wages, compensatory and punitive damages (that may be capped depending on the number of employees), and attorneys’ fees.