Op-Ed "A Call to Restore the Courts' Role in Addressing Sexual Misconduct"
The attorneys general of all 50 states, the District of Columbia, and several territories
recently signed a letter to Congress urging an end to mandatory arbitration of employment
sexual harassment claims. While there has been much public attention paid to the role
of nondisclosure agreements in insulating public (and not-so-public) figures from
criticism for their misconduct, the role of mandatory arbitration agreements in shielding
workplace sexual predators from public disclosure is far less understood but perhaps
ultimately more of a problem.
Nondisclosure agreements, of course, are typically part of settlements of harassment
claims and therefore exist only when the victim has received some satisfaction for
her claim — typically monetary but often career-related. We do not argue that the
amounts paid typically reflect the harm done (indeed, recent reports suggest a staggering
range of payments from millions to a few thousand). Nor are we confident that internal
corporate processes that are usually entailed when the corporate employer pays the
victim usually result in meaningful reforms to prevent recurrences of the conduct.
The Weinstein debacle alone establishes that that is not always the case. But it remains
true that, where there is a nondisclosure agreement, there has almost always been
compensation paid and usually escalation of the wrongdoing to higher ups who can,
at least in the wake of #MeToo, be expected to have learned the costs of sweeping
misconduct under the rug.
But not every claim of wrongdoing, indeed, not every valid claim, results in such
a settlement. Employer counsel remains determined to limit the financial costs of
harassment and they are aided in that mission by mandatory arbitration agreements
that are pervasive in the American workforce. Such agreements, bolstered by the force
of the Supreme Court’s broad interpretation of the Federal Arbitration Act, are typically
extracted from employees as a condition of employment. They essentially waive what
most of us think of as a core protection of American citizenship — the right to a
jury trial. That means that any employee who feels her concerns are not being properly
addressed doesn’t have the right to take her employer to court. And that reality immeasurably
bolsters the employers’ bargaining power, which may explain why so many claims are
not treated with the seriousness they deserve to begin with.
Employers respond that arbitration isn’t a waiver of substantive rights, it’s just
a shift from one venue (the court) to another (the arbitrator). While there is reason
to suspect that arbitrators are more favorable to employers as “repeat players,” one
doesn’t have to go that far to see how an arbitration agreement deprives the employee
of one of her most powerful weapons to resist sexual predation: the publicity that
comes with a public lawsuit. Indeed, a much-touted benefit of arbitration by employer-side
attorneys is the reputational protection derived from the privacy of the arbitral
tribunal. And if there were ever any doubt about the disinfectant value of sunlight
for this kind of misconduct, #MeToo has forever put that to rest.
In short, we strongly support the proposal of the attorneys general, and we urge Congress
to act swiftly to enable sexual harassment claims to be litigated in public forums.