All 56 U.S. attorneys general came together to demand action from Congress this week — the first time in a decade the nation's top legal officers have banded together on a single issue. In a letter sent to congressional leadership on Monday, every attorney general called for sexual harassment legislation that better protects an employees' right to see their day in court. More specifically, they said they believe allowing companies to settle harassment claims outside of the judicial system benefits corporations — not the employees who face harassment on the job.
"Access to the judicial system, whether federal or state, is a fundamental right of all Americans," the letter reads.
That right should extend fully to persons who have been subjected to sexual harassment in the workplace. Yet, many employers require their employees, as a condition of employment, to sign arbitration agreements mandating that sexual harassment claims be resolved through arbitration instead of judicial proceedings.
Essentially, mandatory arbitration is a common clause in employment agreements that prevents employees from taking work conflicts to court. The result is private dealings that allow companies to negotiate with employees directly and avoid negative headlines. The nation's AGs, however, told Congress the practice should not apply to sexual harassment claims.
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.
In the midst of the #MeToo movement that ignited a national discussion around sexual harassment and assault, attorneys general from every state and U.S. territory working together is a strong show of bipartisanship on the issue. Their letter praised Microsoft for announcing in December that it was eliminating forced arbitration; at the time of the announcement, the company's president and chief legal officer told The New York Times that "the silencing of people's voices has clearly had an impact in perpetuating sexual harassment."
The AGs reiterated that view, writing:
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.
Last week, the U.S. House of Representatives passed legislation aimed at reforming Congress' process for handling sexual harassment cases. If passed by the Senate, the bill would eliminate the mandatory 30-day counseling and mediation period for those who report harassment, force members of Congress to pay for their own settlements, and refer every claim to the House Ethics Committee. However, this legislation would only apply to Congress, and would not affect how the average American files a sexual harassment claim at work.
The AGs' letter recognized that both houses of Congress are currently discussing sexual harassment legislation, but they believe the law won't adequately protect employees until mandatory arbitration is outlawed.
Congress today has both opportunity and cause 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.
We are aware that the Senate and the House are considering legislation to address this issue. Whatever form the final version may take, we strongly support appropriately-tailored legislation to ensure that sexual harassment victims have a right to their day in court.
The coalition of AGs was formed by a Republican and a Democrat — Florida's Pam Bondi and North Carolina's Josh Stein, respectively — signaling that they don't see sexual harassment as a partisan issue. Regardless of their political ideologies, the legal officers are urging Congress to force companies to let courts handle workplace sexual harassment claims rather than settle cases privately.
Decades of private arbitration proceedings regarding sexual harassment have had the unintended consequence of protecting serial violators and it must end.