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Revolutionizing the Resolution of Sexual Harassment Claims at the Federal Level

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Joe Jarret
March 4, 2022

Introduction: 

The reliance upon alternative dispute resolution in the form of arbitration by employers to settle employee disputes out of court is hardly a novel or recent concept. Research tells us that American employers have traditionally, and are increasingly, requiring their workers to sign mandatory arbitration agreements. To belabor the obvious, arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to a third-party neutral who, acting much like a judge, renders a decision on the dispute. Although arbitration can take many forms, the most commonly accepted practice requires the disputing parties to privately meet in joint session with the arbitrator, who need not be an attorney, and who most certainly is not a judge. The arbitrator convenes the hearing and usually begins by explaining that it is an informal proceeding not subject to formal rules of evidence or procedure.  Rather, he or she explains that the arbitrator’s role is to hear any evidence that either side wants to submit and then to ultimately render a decision.   

Although arbitration can be binding or non-binding, most employers require their employees to agree to binding arbitration. Consequently, employees who claim that their rights were violated as a result of workplace harassment or discrimination are denied access to the courts. In other words, rather than being afforded the opportunity to pursue their claims before a jury of their peers, employees must submit to arbitration procedures that in most cases, overwhelmingly favor employers who, more often than not, are solely empowered to select the arbitrator. That empowers employers to inoculate themselves against lawsuits, while employees are compelled to accept the findings of the arbitrator whether they like them or not. One of the primary reasons so many employers may insist upon mandatory arbitration is due to the 1991 United States Supreme Court decision, Gilmer v. Interstate/Johnson Lane. This case upheld the enforceability of mandatory employment arbitration agreements, a ruling that substantially changed how the employment rights of American workers are protected. Further, and until recently, as will be seen below, Congress has failed to act when the United States Supreme Court expanded the reach of the Federal Arbitration Act which governs workplace arbitration.   

The Winds of Change: 

Despite the fact that awareness of the prevalence and pervasiveness of workplace sexual harassment has come to the forefront of social discourse, employers increasingly rely upon mandatory arbitration clauses in employment contracts to ensure the removal of employee sexual harassment claims out of the public courtroom and into private arbitration proceedings. In recent months, however, both Congress and the White House have sought, at least in part, to remedy the wrongs that often arise as a result of mandatory, binding arbitration. President Biden recently signed an executive order that served to amend the Uniform Code of Military Justice (UCMJ)—the rules, laws and regulations that govern military behavior—as concerning sexual harassment claims. The two most significant changes are: 1) Sexual harassment will now be considered a separate criminal offense under the UCMJ, and 2) Local commanders will be divested of the power and authority to investigate such claims. Rather, military commanders will henceforth be required to forward complaints of sexual harassment to independent investigators. This order came about, in part, because victims of sexual harassment often claim that local commanders don’t properly or thoroughly investigate complaints, nor mete out punishments that fit the crime. 

President Biden has not limited his campaign to end sexual harassment to the military. Recently, a bill has been sent to the president’s desk that would ban pre-dispute employment arbitration agreements for sexual harassment and sexual assault claims. Because so many employers compel their employees to refer their grievances to arbitration with little or no choice as to the selection of the arbitrator, the House overwhelmingly approved H.R. 4445 dubbed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, in a 335-97 vote on Feb. 7. The Senate passed the measure on Feb. 10, and President Joe Biden is expected to sign the bill into law. “This bipartisan, bicameral legislation empowers survivors of sexual assault and sexual harassment by giving them a choice to go to court instead of being forced into arbitration,” the White House said in a statement. 

In a nutshell, the bill reads that any arbitration agreement signed before a claim or dispute involving sexual assault or sexual harassment arises is voidable at the option of the complainant. If signed into law, employees will have the option to either refer their sexual harassment complaint to an arbitrator, or bypass arbitration and proceed directly to state or federal court. The proposed legislation would also apply to sexual harassment and sexual assault claims brought in a joint, class or collective action. 

Conclusion: 

Because arbitration is infinitely faster, more cost-effective and often more confidential than litigating a matter before a judge or jury in a public forum, many employers will undoubtedly be opposed to the changes to the FAA currently in the wind. Unfortunately, the purported benefits of mandatory arbitration are consistently viewed through the lens of the employer, not of the employee who may or may not receive redress, and who, bound by the secretive nature of the agreement, may never have the ability to voice their grievances. It will be interesting to see whether this new legislation will give voice to those employees who, due to the restrictive nature of confidential, mandatory arbitration agreements, have had to suffer in silence.  


Author: Joseph G. Jarret. J.D., Ph.D., is an attorney, federal and state mediator and arbitrator who spent 25 years in the courtroom before lecturing full-time  on behalf of the Master of Public Policy and Administration program in the Department of Political Science, and the Education Department at the University of Tennessee, Knoxville. He is a past- president of the E. Tennessee Chapter of ASPA, an award-winning author, and a former United States Armored Cavalry Officer with service overseas.  

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