Texas AG Joins Bipartisan Group Urging Congress to Act on Mandatory Arbitration of Workplace Sexual Harassment Claims

The Texas Attorney General has reportedly joined a bipartisan group comprised of representatives from 56 states and U.S. territories in a call for federal legislation that would prohibit employers from requiring victims of workplace sexual harassment to engage in mandatory arbitration.  According to a letter signed by 56 attorneys general and sent to Congressional Leadership on Monday, legislation is necessary in order to ensure that workplace sexual harassment victims maintain access to the court system.  The letter regarding “Mandatory Arbitration of Sexual Harassment Disputes” states:

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. Yet, many employers require their employees, as a condition of employment, to sign arbitration agreements mandating that sexual harassment claims be resolved through arbitration instead of judicial proceedings.

These arbitration requirements often are set forth in clauses found within the “fine print” of lengthy employment contracts. 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 arbitration provisions in other contexts, they do not extend to sexual harassment claims. 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.

Additional concerns arise from the secrecy requirements of arbitration clauses, 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 letter goes on to applaud the Microsoft Corporation’s recent decision to waive contractual requirements for arbitration of sexual harassment claims for all employees.  In addition, the letter references the support Microsoft has publicly expressed regarding proposed bipartisan legislation that would prohibit employers from requiring workers who suffer sexual harassment to arbitrate their claims. You may read more about the proposed bipartisan bill in an earlier Disputing blog post.

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