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.

Read the rest of "A Call to Restore the Courts' Role in Addressing Sexual Misconduct".