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Not So Arbitrary: Putting an End to the Calculated Use of Forced Arbitration in Sexual Harassment Cases

Rachel M. Schiff

Vol. 53

June 2020

Page 2693

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.

The Supreme Court vastly expanded the power and purview of the FAA while striking down contract defenses, such as unconscionability and public policy, that were potential vehicles to dampen the effect of these provisions. As the Supreme Court does not appear to be interested in altering its understanding of the FAA, legislative action is needed to curb their prevalence and support sexual harassment survivors. View Full Article

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