This Note addresses the particular difficulty arbitration agreements pose to survivors of sexual harassment in the workplace. While arbitration agreements were originally intended to facilitate transactions between two commercial parties with equal bargaining power, due to the Supreme Court’s expansive reading of the Federal Arbitration Act (“FAA”) arbitration clauses are ubiquitous in consumer, retail, and employment contracts. Today, more than half of all employment contracts contain a mandatory arbitration provision. Despite their prevalence, employees and consumers rarely recognize the clause’s implications.

Instead of filing a lawsuit in court, individuals subject to arbitration go before an arbitrator. The decision of that arbitrator is binding — there is no right to an appeal. The proceedings are private, and often confidential. Mandatory arbitration reduces an employee’s opportunities to win against their employers, reduces the awards they can receive from their arbitrators, reduces public awareness of corporate abuse, and reduces the likelihood that an employee brings a claim at all. These consequences further deter the most marginalized survivors: queer people, people of color, and poor people.