Recent movements such as #MeToo and Time’s Up have now brought another problem to light that affects more than 56 percent of American workers: a forced arbitration clause that many of us agree to with signed employment agreements—effectively giving away your right to sue in court in exchange for a job. And here in Durham, North Carolina as well as elsewhere in the U.S., if you gave up those rights and are fired wrongly, or if you are sexually harassed or discriminated against, you will not be able to go to court. You instead might go in front of arbitrators, who are lawyers or former judges in part picked by the employer’s lawyer. That kind of forced arbitration can stack the deck against you.
A new bill introduced by Senators Kristen Gillibrand, a democrat from New York, and Senator Lindsey Graham, a republican from South Carolina, would ban the practice of forced arbitration in sexual harassment and sexual bias cases under Title VII. Title VII is a federal law that protects covered employees against discrimination and retaliation by employers. At least in some cases, the playing field would get a bit more level.
The bill was announced in a press conference with Gretchen Carlson. Carlson was an anchor at Fox News who spoke out about the harassment she said she endured at the hands of Fox News executive Roger Ailes. Carlson has spoken about the agreementsthat the harassers used to silence her, by requiring that she keep the settlement and the harassment silent.
“The bipartisan legislation would void forced arbitration agreements that require arbitration of sexual harassment and discrimination claims and allow survivors of sexual harassment or discrimination to seek justice, discuss their cases publicly, and eliminate institutional protection for harassers,” stated Senator Graham.
Will this bill become law?
- There is a long road ahead for the bill. It will have to go to committee and be debated and passed out of committee. Bills must be voted upon and passed and signed by the President in order to become law and some are vetoed. It may never make it; most bills do not. But this bill has many sponsors.
Could the company and the employee still go to arbitration?
- Nothing would stop arbitration if the employer and the employee wanted to go. And they could always make an agreement outside of any formal proceeding in court. But they couldn’t make arbitration mandatory.
Does the bill change anything for other kinds of discrimination or bias under Title VII?
- The bill only applies to sexual harassment and sex discrimination. That includes claims for pregnancy discrimination, gender bias, and pay equity.
- We don’t know. While this is a good step, forced arbitration should be banned from all agreements.
Why is forced (sometimes called mandatory) arbitration a bad thing?
- The fact that employees forced into arbitration must keep the discrimination or harassment secret may make the workplace more hostile. Employees who can talk about their experiences may make employers confront bias in their offices and facilities.
- Employees who arbitrate often get less money than if they go to court.
- The Seventh Amendment to the United States Constitution guarantees a right to a jury trial.
- Costs are high for the employee.
- It can be difficult to get evidence when other cases are kept secret and those employees cannot talk about the pattern of discrimination.
If you need an employment discrimination attorney or an employment rights attorney in North Carolina, call Valerie Johnson of Copeley, Johnson & Groninger for help.
A certified workers’ compensation specialist, Valerie represents state employees, union members, police officers, and all types of North Carolina workers. She also teaches trial skills to third year law students at the University of North Carolina School of Law and has taught workers’ compensation law at Wake Forest University. Listed in Best Lawyers in America in the area of workers’ compensation, Valerie was admitted to the National Academy of Social Insurance in 2011.