Legislation would ban mandatory arbitration of #MeToo claims
U.S. Sen. Kirsten Gillibrand (D–N.Y.) has introduced legislation that would bar employers from including sexual harassment or gender discrimination claims in mandatory arbitration agreements. Identical legislation has been introduced in the House of Representatives.
The Ending Forced Arbitration of Sexual Harassment Act is designed to force employers to openly deal with harassers instead of letting them hide behind a veil of private negotiations. According to Gillibrand, arbitration usually leads to a “secret meeting” where the affected parties “try to work out some kind of deal that really only protects the predator.”
Gillibrand and 14 Senate co-sponsors hope the bill can ride the wave of discontent triggered by the #MeToo movement to become law. Other senators may try to slow-walk the legislation in hopes that passions will cool over time. The bill could become an issue in some races being contested in the 2018 mid-term elections.
Critics of forced arbitration argue the secrecy surrounding the process invariably benefits employers. Unlike court decisions, arbitration decisions do not create a precedent to influence future cases. Plus, arbiters see employers as sources of repeat business and are therefore unlikely to rule against them. Employers argue arbitration is a streamlined, less costly process than litigation.