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A Better Path Forward

January 18, 2020

Americans from all walks of life need federal and state lawmakers to explore legislative reforms that would affirmatively restore full and meaningful access to the courts. Already, some states are moving in this direction. For example, in response to growing awareness of workplace sexual misconduct, Arizona, Massachusetts, and New Jersey have considered legislation that would ban or limit the use of forced arbitration clauses and non-disclosure agreements in employment contracts for claims involving sexual harassment or assault.[i]

The states are also pushing Congress to act on this issue. In February 2018, the attorneys general of all 50 states, along with their counterparts in the District of Columbia and the federal territories, sent a letter to congressional leaders in both parties, urging them to enact legislation that would bar the use of forced arbitration for claims involving sexual harassment in the workplace.

By making full compensation available to the victims of wrongdoing, civil justice litigation offers these individuals the opportunity to pursue their full potential, as unencumbered as possible by the injuries they have suffered.

Some members of Congress appear to be listening. They have introduced the bipartisan Ending Forced Arbitration of Sexual Harassment Act in both chambers.[ii] In addition, members are continuing to work toward the enactment of the Arbitration Fairness Act, an important piece of legislation aimed at reversing a series of troubling U.S. Supreme Court decisions that give corporations nearly unfettered power to deprive their customers and employees of their right to have their disputes heard in court. Specifically, the bill would bar the enforcement of arbitration clauses insofar as they purport to cover employment, consumer, antitrust, or civil rights claims.[iii]

By ensuring that the victims of wrongdoing such as workplace sexual harassment and anti-consumer practices have their day in court, these and other measures would help to promote a fair economy. In the absence of meaningful access to the courts, individuals who have been harmed might otherwise be forced to bear the economic and other burdens of their injuries – burdens that disadvantaged individuals are especially ill-equipped to bear. Moreover, by making full compensation available to the victims of wrongdoing, civil justice litigation offers these individuals the opportunity to pursue their full potential, as unencumbered as possible by the injuries they have suffered. In each of these ways, these bills would serve to promote freedom and economic opportunity for everyone, but especially the historically disadvantaged members of our society.

 

[i] Dustin Gardiner, Arizona Bill Targets Nondisclosure Agreements for Sexual Assault, Harassment, AZCentral, Dec. 1, 2017, https://www.azcentral.com/story/news/politics/legislature/2017/12/01/arizona-bill-would-void-nondisclosure-agreements-sexual-assault-harassment/910425001/ (last visited July 11, 2018); Christian M. Wade, Lawmakers Seek Ban on Non-Disclosure Agreements, Salem (Mas..) News, Mar. 4, 2018, http://www.salemnews.com/news/local_news/lawmakers-seek-ban-on-non-disclosure-agreements/article_dd47d40d-fcba-585a-bfdc-03e99602fe48.html (last visited July 11, 2018); Phillips & Assoc., New Jersey Legislature Considers a Bill that Would Ban Non-Disclosure Agreements in Sexual Harassment and Discrimination Cases, New Jersey Employment Lawyer Blog, Dec. 21, 2018, https://www.newjerseyemploymentlawyerblog.net/2017/12/new-jersey-legislature-considers-bill-ban-non-disclosure-agreements-sexual-harassment-discrimination-cases.html (last visited July 11, 2018).

[ii] Ending Forced Arbitration of Sexual Harassment Act of 2017, S. 2203, 115th Cong. (2017), available at https://www.congress.gov/bill/115th-congress/senate-bill/2203/text?format=txt; Ending Forced Arbitration of Sexual Harassment Act of 2017, H.R. 4734, 115th Cong. (2017), available at https://www.congress.gov/bill/115th-congress/house-bill/4734.

[iii] Arbitration Fairness Act of 2017, H.R. 1374, 115th Cong. (2017), available at https://www.congress.gov/bill/115th-congress/house-bill/1374.