The Ending Forced Arbitration of Sexual Harassment Act: A Legislative Response to #MeToo

With sexual misconduct allegations sending shockwaves everywhere from Hollywood to Washington, it should come as no surprise that some legislators are chomping at the bit to pass legislation addressing sexual harassment in the workplace. On December 6, a group of lawmakers introduced legislation that would eliminate forced arbitration clauses in employment agreements. Representatives Cheri Bustos (D-Ill), Walter Jones (R-N.C.) and Elise Stefanik (R-N.Y.) and Senators Kirsten Gillibrand (D-N.Y.), Kamala Harris (D-Calif.) and Lindsey Graham (R-S.C.) are sponsoring the “Ending Forced Arbitration of Sexual Harassment Act,” which proponents say will prevent women from being silenced through mandatory arbitration agreements.

During a press conference, Rep. Cheri Bustos said 60 million Americans have mandatory arbitration clauses in employment contracts. Proponents of the bill complain that these mandatory arbitration clauses force employees who are victims of sexual harassment to submit their claims to private arbitration as opposed to filing a public lawsuit. Proponents contend that “forcing victims of sexual harassment or gender bias to arbitrate their claims simply shields harassers’ bad behavior and perpetuates the continuation of hostile work environments.” However, many employers and employees prefer arbitration to a costly and lengthy litigation process. Arbitration agreements ensure that the usually private reasons behind adverse employment actions remain private and typically allow for more timely resolutions.

If passed into law, the Act would not make employment arbitration agreements altogether unenforceable. The Act would require employers and employees to litigate sexual harassment claims, while leaving unaffected all other arbitration-eligible claims. This could potentially require employees who bring both harassment and non-harassment legal claims to litigate some claims in court while simultaneously submitting other claims to arbitration.

It is worth noting that the proposed Ending Forced Arbitration of Sexual Harassment Act has a long journey before potentially being signed into law. The bill must be assigned to a committee for consideration, withstand debate, pass a vote, and be signed into law by the President before becoming law. This process could take months or even years to complete, if ever.

Given the current media emphasis on sexual harassment claims, it is important that employers remain vigilant when enforcing policies and procedures designed to combat sexual harassment in the workplace. Employers would be wise to revisit their anti-harassment policies and practices to ensure that they are in compliance with the law and that they are fostering a workplace environment where all employees can thrive. See our blog post entitled “#MeToo”: Fostering A Harassment-Free Workplace for more information on best practices to avoid sexual harassment in the workplace.