“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,” reads a letter to Congress, signed by every single state attorney general in the U.S. On Monday, in a letter addressed to Congressional leaders Paul Ryan, Mitch McConnell, Kevin McCarthy, John Cornyn, Nancy Pelosi, Charles Schumer, Steny Hoyer, and Richard Durbin, fifty-six attorney generals asked Congress to “champion the rights of victims of sexual harassment in the workplace by enacting legislation to free them from the injustice of forced arbitration and secrecy when it comes to seeking redress for egregious misconduct condemned by all concerned Americans.”
The nearly sixty “duly-elected and appointed Attorneys General and chief legal officers of our respective States, District of Columbia, and territories,” emphasized that “access to the judicial system, whether federal or state, is a fundamental right of all Americans.” They stressed that while arbitration – a form of alternative dispute resolution in which parties resolve a legal matter out of court through often-confidential proceedings – may make sense in some cases, “they do not extend to sexual harassment claims.”
In their letter, the Attorneys General “applaud[ed] Microsoft Corporation for recently announcing that it will discontinue arbitration requirements with respect to sexual harassment claims.” Microsoft is an outlier in this sense, as no small number of companies require individuals, as a condition of their employment, to sign contracts that contain a mandatory arbitration clause, such a provision stipulates that the employee will be required to resolve a dispute with his/her employer, including charges of sexual harassment, through arbitration and thus, not before a court of law.
In addition to depriving individuals of their right to a day in court, “the secrecy of the settlements [often associated with such arbitrations] prevents the public from learning about harassment complaints, and ending the practice would help to put a stop to the culture of silence that protects perpetrators at the cost of their victims.”
The group pointed to Microsoft’s President and Chief Legal Officer, Brad Smith, who “has fairly noted, ‘[b]ecause the silencing of voices has helped perpetuate sexual harassment, the country should guarantee that people can go to court to ensure these concerns can always be heard.’”
Still yet, the Attorneys General stated in their letter that "victims of such serious misconduct should not be constrained to pursue relief from decision makers who are not trained as judges, are not qualified to act as courts of law, and are not positioned to ensure that such victims are accorded both procedural and substantive due process.”
As the letter notes, “the Senate and the House are considering legislation to address this issue.”