In a rare instance of bipartisanship, both the House and the Senate have now officially agreed to do away with forced arbitration in workplace sexual assault and harassment disputes, including Title IX and non-Title IX claims. The new legislation marks a dramatic shift in the status quo but nevertheless has gained tremendous support from politicians on both sides of the status quo. Let's find out what's changed, what's at stake, and what this may mean for those who stand accused of these violations, including in the school, college, and university setting.
First Things First: What Is Forced Arbitration?
As a form of alternative dispute resolution, arbitration itself has many advantages; forced arbitration, however, is a different matter. For decades, it has been the process by which disputes about sexual harassment or other grievances were resolved in a workplace scenario.
Under this model, any employee who stepped forward to make a claim about their employer's misdeeds was compelled to waive their right to sue, appeal, or enter into a class-action suit. Unlike the process of mediation, in which the mediator facilitates decision-making between two parties, the arbitrator makes a finding that is final.
More often than not, forced arbitration in employer/employee disputes amounted to a decision in favor of the employer. In 2020, the win rate of workers in an arbitral situation with their employer was abysmally low; out of some 60 million people subject to forced arbitration provisions, only 82 received a monetary award.
Bipartisan Legislation, Five Years in the Making
Unlike many other aspects of the justice system, the number of forced arbitration cases has not suffered from the pandemic. In 2020, they were up 17% over 2019's figures.
The bill, known as the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, was jointly proposed by Senators Kirsten Gillibrand (D-NY) and Lindsey Graham (R-SC), as unlikely a political pair as they come, in 2017.
In February, both the House and the Senate voted overwhelmingly in favor of banning the arbitration mandate, with both Democrats and Republicans speaking up to support the bill. As of this writing, President Biden has not yet signed the measure into law but is expected to do so soon.
It bears mentioning that this measure doesn't preclude the use of arbitration to settle workplace sexual harassment claims. It now allows a victim the choice between alternative dispute resolution methods and bringing a lawsuit against their employer.
A Sea Change for Victims of Workplace Sexual Abuse
Critics of the forced arbitration model have often been the sexual assault or harassment victims themselves, along with their advocates. They say that such procedures overwhelmingly favor the alleged defendant—and statistics like that one certainly seem to substantiate their stance.
Defendants in these cases, however, should also welcome the ban. When a mandated process is so widely disparaged as a direct result of seemingly one-sided outcomes, it ceases to maintain meaning or value. A favorable decision by a broken, biased process will lead to many people viewing the defendant's quote-unquote victory as invalid.
The victims are given their opportunity to speak out against an employer, but the accused never get their fair “day in court.”
If You Stand Accused and Need Help
Are you, or is a family member, accused of sexual misconduct, abuse, or harassment by your university employer? Whether your experience will play out in arbitration or go to trial, having an experienced and compassionate lawyer by your side is invaluable. Attorney Joseph D. Lento specializes in Title IX defense and has helped to broker countless agreements before the dispute can develop into a case that requires either arbitration or a judge's attention. To learn more about how the Lento Law Firm can help, call 888-535-3686.