With the explosion of news coverage about sexual harassment in the workplace in recent months, a number of researchers have been looking at what this means for the average worker in the United States. Turns out that over half of non-unionised employees are now covered by mandatory arbitration, according to Cornell University researchers.
Arbitration clauses have come to attention thanks to Equifax and other massive security breaches that leaked thousands of individuals’ private information. They’re also a popular way for nursing homes and other medical facilities to avoid juries and high-dollar judgments against their companies. Arbitration severely limits what victims can do to repair their lives after they’ve been harmed.
Mandatory arbitration for employees is often used as a way for employers to quietly take care of things like sexual harassment but what’s more is that mandatory arbitration is also required when someone has been killed on the job or severely harmed in the workplace due to the employer’s negligence. Most employees don’t know they’re subject to forced arbitration until after an event occurs.
The Association of Attorneys General sent a letter to Congress in February demanding that Congress amend the Federal Arbitration Act (FAA) to stop mandatory arbitration for sexual harassment in the workplace. The Attorneys General write:
Congress today has both opportunity and cause to champion the rights of victims of sexual harassment in the workplace by enacting legislation to free them from the injustice of forced arbitration and secrecy when it comes to seeking redress for egregious misconduct condemned by all concerned Americans.
Senator Kirsten Gillibrand introduced a bill ending forced arbitration for sexual harassment in December of 2017—but no progress has been made on passing the legislation.
Although some workplaces are changing arbitration policies related to sexual harassment claims, such as Microsoft, this leaves most non-unionised employees with little recourse. Instead, workers are forced into the same secrecy and unjust practices of force arbitration that deny them access to the judicial system.
Regardless of the offense, sexual harassment or even death on the job, mandatory arbitration prevents victims from exercising their rights to their day in court. The problem is few employees know they’re signing these “fine print” agreements hidden in employment contracts. What’s more is if more than half of all available positions force arbitration, that gives would-be employees little choice but to accept these terms to gain employment.