Congress on Cusp of Barring Arbitration for Employee Sexual Harassment Claims

Vincent Jackson
Vincent Jackson

In response to the #MeToo Movement, Congress is on the cusp of passing bipartisan legislation that would prohibit employers from using forced arbitration to resolve claims of workplace sexual harassment and sexual assault. 

Though the final bill has not yet been presented for the President’s signature, drafts of the bill have passed both the House and the Senate.  The ban on mandatory arbitration in employment contracts marks a sea change in how employers will resolve sexual harassment claims.  Arbitration proceedings take place outside of court, are not open to the public, and are far more streamlined than cases which are filed in the court system.

The bill would apply to any new sexual harassment claims, regardless of when the allegations occurred or when the employment contract was signed.  Employees will still have the option of pursuing arbitration as a remedy, but will not be forced to attend arbitration against their will. 

Though this new bill marks a significant change to federal employment law, it remains to be seen how deep its impact will be on the court system.   More sexual harassment cases will be filed in court, but some employees may not want the publicity of a trial, a lengthy discovery and appeal process, and the numerous other difficulties inherent in litigation.  It will be interesting to monitor court statistics over the next few years to see if this bill’s actual impact matches the current rhetoric surrounding it.  

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