In a rare display of unity, all 56 of the nation’s attorney’s general, representing each U.S. state and territory, are urging Congress “to end secret, forced arbitration in cases of workplace sexual harassment.”
The bipartisan effort was spearheaded by Florida Attorney General Pam Bondi and North Carolina Attorney General Josh Stein.
“Too often employees are required to sign employment contracts containing arbitration agreements mandating that sexual harassment claims be resolved through private arbitration instead of the judicial process,” they said in a Feb. 12 statement. “The secrecy surrounding these proceedings can protect serial violators and provide inadequate relief to victims.
The letter asks leaders in the House of Representative and Senate asks Congress “to pass appropriately-tailored legislation to ensure that sexual harassment victims have a right to their day in court.”
It has been a decade since all 56 U.S. Attorneys General jointly petitioned Congress.
The issue at hand: employees are often required to sign contracts stipulating that sexual harassment claims be settled in private courts.
“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,” the letter says. “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.”
These arbitration requirements often are set forth in clauses found within the “fine print” of lengthy employment contracts. Moreover, the AGs say, 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,” they wrote. “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,” the letter says.
“This veil of secrecy may then prevent other persons similarly situated from learning of the harassment claims so that they, too, might pursue relief,” it adds.
“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 “applauds” Microsoft Corporation for recently announcing that it will discontinue arbitration requirements with respect to sexual harassment claims and for supporting legislation to ensure that victims of sexual harassment be accorded the right of access to our judicial system.