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Hurley McKenna & Mertz, P.C.

How Arbitration Clauses Protect Abusers And Keep Victims Quiet

Posted on in Personal Injury

b2ap3_thumbnail_Screen-Shot-2017-03-17-at-3.30.32-PM.pngSexual Harassment in the workplace is unequivocally common. So when it happens, the victim should seek justice in court. That is every citizen’s right according to the Seventh Amendment.

However, countless employers include an “Arbitration Clause” in employee contracts. It’s an inconspicuous disclaimer that most people are unaware of. This clause essentially requires employees to waive their right to sue in the event of harassment or discrimination. “Arbitration” is just another word for mediation-- In which the company pulls aside the victim and the perpetrator to try and settle the dispute internally. That way, the company gets off scot-free. The employer doesn’t have to worry about a public lawsuit, about firing the guilty party, or about making sure in-office harassment doesn’t continue. The system is a pretty transparent. It allows the company to save it’s own skin. But the bottom line is, the clause doesn’t protect victims, it silences them.

In her recent essay, Gretchen Carlson wrote, “According to the National Employment Lawyers Association, in 2010 36 million employees — or roughly a third of the non-union workforce — were subject to mandatory arbitration for workplace disputes.” It’s been proven that employees lose in arbitration meetings far more often than they do in litigation trials. The win rate for employees in arbitration is only 21.4 percent, according to Alexander Colvin’s study. “An Empirical Study of Employment Arbitration: Case Outcomes and Processes”.

If we want our workplaces to be safe, and victims to be taken seriously, it’s time to reassess the presence of the arbitration clause. A few bills are currently being introduced on Capitol Hill, mainly the “Arbitration Fairness Act of 2017”. This bill restores the rights of workers to seek justice in courts. Sexual harassment and discrimination should not be swept under the rug. Employers must be prepared to combat these issues head on, and allow victims the right to justice.

 

Sources:

https://www.franken.senate.gov/files/documents/170307_ArbitrationFairnessAct.pdf

http://time.com/4286575/sexual-harassment-before-anita-hill/

http://digitalcommons.ilr.cornell.edu/articles/577/

https://www.nela.org/index.cfm?pg=mandarbitration

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