Someone who experiences sexual violence, assault or harassment in the workplace will now have a powerful choice in how their claim is resolved, thanks to a new law passed by both houses of Congress in February of 2022. Instead of mandating a survivor must have their complaint resolved in an arbitration with their employer, those victims can now choose to have their case heard in court, in front of a jury of their peers. The passage of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act follows years of vigorous advocacy from organizations like the American Association for Justice.  The Act prevents employers from enforcing language in employment contracts forcing their workers to place claims of workplace sexual harassment or sexual misconduct in the hands of employer-paid arbitrators.  The Act will protect survivors’ right to decide where and before whom their claims are litigated, and will bring desperately-needed transparency to the resolution of these cases. 

Forced arbitration, in all its forms, deprives citizens of their right to have claims heard by a jury of their peers in the public eye.  In the workplace context, arbitration poses a distinct risk of bias.  The largest arbitration firms in the country are overwhelmingly male, and lack diversity among arbitrator racial and ethnic backgrounds, age, and sexuality.  Women and racial minorities- the groups most likely to experience harassment in the workplace- are statistically more likely to be subject to forced arbitration clauses.  This has a real impact on outcomes- arbitrators are significantly more likely than juries to rule in favor of employers, and give lower awards than juries even when they determine a company is in the wrong.  Even when a survivor proves their case, the game is rigged against them. 

As the MeToo movement has demonstrated, survivors stepping forward and speaking up can be a powerful agent for change. It only takes a single voice to inspire others to come forward with their own accounts of abusers and harassers, and to demonstrate a larger pattern and practice of their workplace tolerating sexual misconduct.  Employers know it and fear it. That’s why, before the passage of the act, employers were allowed to include language in contracts preventing workers from standing together by bringing group sexual harassment actions in court. With the passage of this Act, arbitration can no longer be a tool to silence and cheat survivors and protect businesses from scrutiny. 

This landmark effort is a much-needed step toward justice for survivors of sexual harassment, sexual violence, and sexual misconduct in the workplace. For too long, coercive arbitration clauses have slammed the courthouse doors closed to employees suffering abuse while protecting the companies that permit it. The right to a trial before a jury of one’s peers is a key part of our Bill of Rights and should be accessible to any person that wants to exercise that right.  Every survivor deserves to choose what justice looks like to them. This Act, quite literally, will give them their day in court.   

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