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Sexual Harassment Claims to be Exempted from Binding Arbitration Agreements?

If the Attorneys General from all fifty states and several U.S. territories have anything to say about it, yes. On February 12, the National Association of Attorneys General penned a letter, which was also signed by Kentucky Attorney General Andy Beshear, requesting that Congress enact legislation exempting sexual harassment claims from binding arbitration agreements.

In the last five years or so, the Supreme Court has consistently ruled that employers may require employees to submit workplace disputes, including discrimination, retaliation, harassment, and wage-and-hour claims, to mandatory arbitration. Agreeing to arbitrate these claims is often a requirement for initial employment.

"While there may be benefits to arbitration provisions in other contexts, they do not extend to sexual harassment claims. Victims of such serious misconduct should not be constrained to pursue relief from decision makers who are not trained as judges, are not qualified to act as courts of law, and are not positioned to ensure that such victims are accorded both procedural and substantive due process.

Additional concerns arise from the secrecy requirements of arbitration clauses, which disserve the public interest by keeping both the harassment complaints and any settlements confidential. This veil of secrecy may then prevent other persons similarly situated from learning of the harassment claims so that they, too, might pursue relief. Ending mandatory arbitration of sexual harassment claims would help to put a stop to the culture of silence that protects perpetrators at the cost of their victims."

The take-away: If Congress takes action and enacts legislation, employers may need to change current practices that require new hires to sign arbitration agreements or edit the arbitration agreement to comply with the legislation. The NAAG has not proposed any specific language; the group simply supports "appropriately-tailored legislation to ensure that sexual harassment victims have a right to their day in court."

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