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Workplace Victims of Sexual Harassment Need Access to Courts, 56 AGs Say

By William Vogeler, Esq. on February 15, 2018 | Last updated on March 21, 2019

When every state attorney general says the same thing about workplace harassment, it might be time to listen.

In a letter to Congress, the National Association of Attorneys General urged lawmakers to enact legislation to protect workers from sexual harassment. For a group of lawyers chiming in from 50 states and six territories, their message was clear.

Sexual harassment cases should not be shuffled off to private arbitration. It's time to bring those cases out in the open.

No Arbitration Agreements

"While there may be benefits to arbitration provisions in other contexts, they do not extend to sexual harassment claims," the attorneys said.

The letter was timed well for proponents of the Ending Forced Arbitration of Sexual Harassment Act of 2017. They want victims to be free to take their cases to court.

According to reports, more than half of all American workers are subject to mandatory arbitration. They affect an estimated 60 million people.

Proponents of the legislation say private arbitration keeps settlements confidential and prevents other people from learning about harassment problems. "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 attorneys general said.

Waiving Arbitration Clauses

In their letter to Congress, the attorneys praised Microsoft for waiving arbitration requirements for harassment claims. Chief legal officer Brad Smith said the company has never enforced the provision and will not rely on it in the future.

Courts generally enforce arbitration agreements, but not when they are one-sided and attempt to hide matters against public policy. In Hooters of America, Inc. v. Phillips, for example, a federal appeals court refused to enforce an arbitration agreement signed by a former waitress in a sexual harassment case.

The court said the agreement was an attempt at "sham arbitration, deliberately calculated to advantage Hooters in any proceeding in which claims are initiated against it."

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