Will CA move away from forced arbitration for sexual harassment cases?

The recent #MeToo movement has resulted in large number of women speaking out against sexual harassment in the workplace. Yet recent data on official complaints shows that sexual harassment complaints are at the lowest rate they have been in over twenty years. The Equal Employment Opportunity Commission has received 9,600 sexual harassment complaints in 2017. This is a significant drop from the 16,000 complaints reported in 1997.

Why the discrepancy? The business marketplace is moving away from litigation to resolve sexual harassment complaints. Instead of allowing an employee to sue an employer for this type of violation in the courtroom, employment contracts often require the resolution of this matter through arbitration.

What is arbitration? Arbitration is an alternative to traditional litigation. Essentially, it allows those who have a legal issue to voice this issue before a neutral third party. This third party will guide negotiations towards a resolution.

The process is generally private, meaning the resolution and dispute itself may not become public knowledge. It has grown in popularity in recent years. A study by the Economic Policy Institute reports that 60 million people were subject to these types of arbitration agreements in 2017.

Will sexual harassment claims remain within the arbitration system? There are several efforts to stop this trend. As noted in a recent piece by Bloomberg, attorneys' generals from every state in the country have filed a letter urging Congress to act. Lawmakers are encouraged to propose and support a law that would ban the required use of arbitration for sexual harassment claims within the workplace.

What is happening in California? It is not uncommon for employees in California to find themselves bound by an arbitration agreement when facing a sexual harassment dispute. Lawmakers in the state recently proposed a bill that would bar employers from requiring new hires sign an agreement waiving the right to file a lawsuit against an employer in the event of a dispute. This would include a sexual harassment claim.

Will the proposal become law? It is difficult to determine the fate of this bill. It is not the first time the state has taken such a proposal into consideration. In 2015 a similar proposal made it to the Governor's desk. Governor Jerry Brown ultimately vetoed the bill.

What can victims of sexual harassment in CA learn from this debate? It is important to note that arbitration is a viable option in some situations. The debate centers on the fact that many employees do not have a choice. They are forced to sign away their right to choose litigation as opposed to arbitration as a condition of employment.

The debate is about empowerment. Victims of sexual harassment should feel empowered by the fact that they can hold their abuser accountable for his or her actions. Regardless of the fate of this bill, if you are the victim of this form of abuse you can hold your abuser accountable. An attorney can review your case and discuss your options.