The Price Is (Not) Right: Mandatory Arbitration of Claims Arising Out of Sexual Violence Should Not Be the Price of Earning a Living

Nicolette Sullivan· 21 Vand. J. Ent. & Tech. 339

Abstract

As demonstrated by the #MeToo movement, current attempts to curtail systemic sexual violence in the workplace have fallen flat: approximately sixty million US workers are subject to mandatory arbitration clauses, which employers tend to bury deep within the fine print of employment contracts. These clauses, often coupled with confidentiality agreements, have provided offenders—and their employers—with a mechanism to escape liability and public scrutiny. Under the existing judicial framework, whether a court will allow victims of workplace sexual violence to escape binding arbitration remains unclear. Congress attempted to address this uncertainty by proposing the Ending Forced Arbitration of Sexual Harassment Act of 2017. Though well intentioned, Congress failed to properly tailor the bill to all forms of sexual violence in the workplace. This Note argues that employees should never be compelled to arbitrate claims of sexual violence, but rather should be afforded the choice to either arbitrate or instead resolve the matter in court. Moreover, this Note advocates for an amendment to the proposed bill—replacing the term “sex discrimination dispute” with “sexual violence dispute”—to explicitly prohibit employers from mandating binding arbitration of any claims of sexual assault, misconduct, or harassment. Through this modification, Congress can empower victims to share their stories if, when, and where they so choose.