There is an old Chinese proverb about a farmer who meets with a series of fortunes and falls. As his fellow villagers clamber around him to sympathize with sadness or celebrate prosperity, the farmer remains steadfast. Whether good or bad, the farmer always says, “We’ll see.” For he knows that windfalls and setbacks may not stay that way forever, and the perception of a thing may change over time.
The Senate recently voted to approve legislation that would make arbitration agreements regarding sexual assault and harassment in the workplace null and void. The bill passed the House of Representatives weeks before, and the President is expected to sign it.
Proponents of the bill praise it as a step towards holding perpetrators of harassment accountable. And indeed it will. But does the bill do enough to stop harassment and discrimination in the workplace? We’ll see.
How has the issue been seen historically?
Under Title VII of the Civil Rights Act, sexual harassment falls within gender discrimination. Sexual harassment is, in fact, a subset of discrimination – which this bill does not cover. The bill left out gender discrimination (or other forms of discrimination) on purpose because it would not have passed otherwise. It would not have gained enough votes by federally elected officials. This is very telling.
Worker’s rights advocates often disfavor arbitration because it limits an employee’s recourse in the event of discrimination or unfair workplace practices. Arbitrations usually take place confidentially, where a single arbitrator – an individual who the company often pays – will decide the merits of a complaint. And more often than not, the arbitrator’s decision is final. There is no jury, and there are few options for appeal. The courts, including recent Supreme Court rulings, have upheld the validity of arbitrations as a contract between employer and employee. Both parties often sign arbitration agreements at the outset of a worker’s employment and at a time when notions of discrimination or harassment are far from an employee’s immediate considerations.
By limiting the scope and breadth of forced arbitration, the authors of this bill feel that it will prevent future acts of sexual assault, harassment, and discrimination. What remains unclear though, is the bill’s effectiveness. We will have to wait and see. It simply may not have gone far enough to protect the discriminated.