Forced arbitration is a practice used by many employers to handle complaints by employees, including complaints of sexual harassment. The practice came under scrutiny beginning with Gretchen Carlson’s landmark suit against Fox news and continues with the #MeToo movement. Employment contracts often contain clauses saying that any complaints an employee may have must be settled by arbitration. By signing the contract the employee essentially gives up the right to try any disputes in civil court. Carlson was able to skirt the clause by suing then Fox CEO Roger Ailes directly for harassment and retaliation.
Although the company Facebook has strong women such as Sheryl Sandberg in leading positions and its sexual harassment rules and procedures are openly available to the public, it still requires disputes to be settled in private arbitration processes. In cases of sexual harassment, forced arbitration has come under fire because opponents say it silences victims by first forcing them into a closed process and then not allowing them to talk about what happened. At the end of it all they must then return to work as if nothing had happened.
Legislation to End Forced Arbitration for Sexual Harassment Cases
A bipartisan bill was introduced in December that would prohibit forced arbitration clauses in employment contracts. Several companies immediately endorsed the bill including Microsoft, which announced they would no longer use arbitration in such cases. Women employees in the tech industry have reported rampant sexual harassment and discrimination as well as human resources departments that did little or nothing to help them. Susan Fowler, a former software engineer at Uber, wrote a blog entry that went viral about her experiences at that company. According to Fowler, forced arbitration deprives workers of their constitutional rights.
Microsoft ended the use of arbitration to deal with sexual harassment claims even though the bill has not yet passed. Company president Brad Smith said it is a mistake for employers to assume that “this could never happen here.”
Many employers choose the path of arbitration because they believe it keeps costs down by avoiding lengthy expensive trials and discouraging frivolous lawsuits. However, a Cornell University study from 2011 found that arbitration invariably favors employers.
A spokeswoman for Facebook said the company does use arbitration but does not require the parties to keep silent afterwards. The company feels that arbitration is more neutral since both parties are involved in choosing the arbitrator. Facebook has an in-depth training program on sexual harassment in place for employees that aims to prevent incidents from occurring in the first place, according to their spokeswoman.
Regarding the bill being debated in Congress, Facebook has not yet taken a position on it saying that they are “studying it” before passing judgment. Rep. Cheri Bustos, who introduced the legislation, said that all businesses need to be aware of this issue and she hoped that Facebook would choose to lead by example.
Middletown Sexual Harassment Lawyers at McOmber & McOmber, P.C. Represent Victims of Workplace Sexual HarassmentIf you have experienced sexual harassment at work you may be entitled to compensation. Contact McOmber & McOmber, P.C. to speak to a skilled Middletown sexual harassment lawyer about your case. We provide free consultations at our Marlton and Red Bank, New Jersey offices. Call 732-842-6500 today or complete our online contact form to get started.