NEW BILL TO END FORCED ARBITRATION OF SEXUAL ASSAULT AND SEXUAL HARASSMENT

ENDING FORCED ARBITRATION OF SEXUAL ASSAULT AND SEXUAL HARASSMENT ACT OF 2021

On March 3, 2022, President Joe Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021—a bill that prohibits forced arbitration for workers who are victims of sexual assault and sexual harassment. This measure will help to prevent employers from forcing their employees to settle sexual misconduct claims in arbitration venues that that research shows overwhelmingly favors employees.

THE AFFECTS OF FORCED ARBITRATION

An estimated 60 million working Americans are affected by forced arbitration each year. Forced arbitration is a controversial practice in which a business requires employees, or consumers, to consent to the arbitration of legal disputes with the business directly, rather than bringing the claim to court. Although this practice is seemingly voluntary, employees are required to assent to the agreement to obtain employment. This practice violates the rights of workers through effectively barring access to the courts for all types of legal claims.

The power afforded to companies through forced arbitration agreements exacerbates an already unfair power dynamic. In forced arbitration settings, the company sets the rules. From deciding the fees an employee must pay, to who will decide the dispute, where the arbitration will take place, confidentiality provisions, and all other rules of the proceeding, the company has complete control over the gameboard.

According to the American Association for Justice, there was a 17% increase in forced arbitration cases from 2019 to 2020 alone. With cases rising, the likelihood of a claim's success has decreased. In 2020, just 577 Americans won a monetary award—a win rate of 4.1% which is below the five-year-average win rate of 5.3%. With the current statistics, more people climb Mount Everest in a year than win their arbitration case.

MORE LEGISLATIVE CHANGE NEEDED

Forced arbitration of sexual harassment and sexual assault claims previously robbed survivors of their ability to seek real justice and provided perpetrators with the luxury of anonymity. However, this new bill will not allow perpetrators and corporations to hide behind privately purchased justice but will force those who have committed these offenses to face a jury of their peers.

Although this is a monumental win for victims of sexual harassment and sexual assault in the workplace, it also highlights the need for legislative change towards forced arbitration practices in general.