New Law Ends Forced Arbitration of Sexual Harassment & Assault Cases

Both houses of Congress have approved a bill that would end forced arbitration in sexual assault and sexual harassment cases.  President Biden signed the measure into law in March 2022. Victims can now file lawsuits in court against perpetrators.  

We have written about mandatory pre-dispute arbitration before expressing concerns that forced arbitration proceedings require secrecy, depriving sexual harassment victims of their right to publicly discuss their cases - and of their right to receive a trial by jury.  The lack of public scrutiny and transparency in arbitration hearings has enabled employers to shield unlawful and unfair practices from public view, and to avoid accountability.  The practice has also very significantly hindered an employee’s ability to leverage the employer to come to the settlement table.

The fact that the findings of forced arbitration are private and confidential also means that there is no ability for future plaintiffs and their attorneys to uncover company-wide data to expose patterns and prior practices of sexual harassment discrimination.  

As we mentioned before, most arbitrators are former management-side attorneys.  Therefore, it is not a surprise that forced arbitration has resulted in many more favorable outcomes for employers than employees:  the public does not learn of the charges against the company, the arbitrators favor the companies in decision-making, and even when arbitrators do find in favor of the employee, they award significantly lower damage awards compared to cases where employees are able to go to court. 

This bill is one of the most significant workplace reforms in recent history, and will be a major step forward towards protecting victims and forcing perpetrators to be scrutinized in the light of day.