This week, the United States Senate passed landmark legislation ending forced arbitration for victims of sexual assault and sexual harassment in the work place.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act passed with strong bipartisan support and is a major milestone in the fight against sexual harassment in the workplace and justice for survivors. While it is unfortunate that gender, race and other forms of workplace discrimination and harassment are not included, this is an important first step.
Survivors of sexual assault and sexual harassment are now empowered to choose whether they want to file their cases in court or in arbitration. The new law would also apply retroactively to existing arbitration agreements, rendering them unenforceable.
Most employees do not realize they have signed away their rights to a jury trial and to publicly hold their employers and harassers accountable for unlawful conduct in the workplace, when they sign paperwork for their new job. Often hidden in the stack of paperwork is an arbitration agreement specifying that all legal claims against the employer (including harassing supervisors and co-workers) must be made in arbitration - a private forum in which the private judge is paid for by the employer and is the sole and final decision maker. Arbitration also drastically limits the amount of discovery (information) an employee is entitled to seek from the employer, making it harder for the employee to prove his or her case. As one might imagine, employers prevail in arbitration at a much higher rate than employees with the cards stacked against the employee from the beginning.
The new legislation, affecting more than 60 million Americans, is being hailed as one of the most significant congressional reforms to employment law in years. Indeed, this is a long overdue victory for all those who have suffered sexual assault and harassment on the job and have been forced to litigate their claims in secret.