Could An Arbitration Clause Block Your Sexual Harassment Claim?

What do employment arbitration agreements have to do with sexual harassment?

Typically, an arbitration clause is an agreement to not pursue any legal action against your employer in court. Instead, it forces you to take your dispute into private arbitration, where a binding decision is made by a supposedly neutral third party. That means that you can’t sue even for something as awful as sexual harassment. When combined with a confidentiality clause, it’s a great shield for your employer but not so great for you.

Arbitration clauses are perfectly legal, but they don’t leave the employees stuck with them much choice. A prospective employee that’s presented with one in his or her contract either agrees to the clause or loses the job offer. If you’re like most people, you’ll sign and lock yourself in.

For that matter, you may not even have to sign anything to be bound to an arbitration clause. Some employers sneak them into the materials you’re handed when you take the job alongside the instructions on where to park, and they can be just as binding.

In many cases, the employer has the upper hand and gets to pick the arbitrator, so the company can choose one that is typically “employer friendly.” Your employer also enjoys the benefits of access to documents and records you may not be able to see without the discovery process that’s allowed during the course of a civil suit.

Nobody even seems to be certain how many employees are prevented from exercising their rights by arbitration clauses. One study estimates that it could be as many as one quarter of all non-unionized workers. The Equal Employment Opportunity Commission (EEOC) also believes that mandatory arbitration clauses promote secrecy and hurt employees but hasn’t been able to overcome them in court.

Just the same, some victims of sexual harassment have found ways around their arbitration clauses. In one notable example, television commentator and author Gretchen Carlson was able to skirt the arbitration clause in her contract with Fox News by directly suing Roger Ailes, the co-founder, chief executive officer and chairman of Fox, instead of suing the company itself.

If you’re the victim of sexual harassment, don’t assume your arbitration agreement will stop you from filing a civil suit until after you’ve consulted with an attorney.