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Attorneys General Support Ending Arbitration of Workplace Sexual Harassment Claims

Last week, the National Association of Attorneys General (NAAG) sent a letter to leaders in Congress, urging the passage of legislation that would prohibit mandatory arbitration of workplace sexual harassment claims. In the letter, 56 attorneys general of the United States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, and the Virgin Islands called on Congress to allow victims of workplace sexual harassment claims to have their days in court and be afforded the “procedural and substantive due process” that comes with proceeding with a lawsuit.  

The attorneys general agreed that mandatory arbitration may be beneficial “in other contexts,” but concluded decisively that those benefits “do not extend to sexual harassment claims.” They also frowned upon clauses that require confidentiality of complaints and settlements of such claims because they prevent the “me too” moments in which similarly situated victims may learn of harassment claims of others and decide whether they, too, might pursue relief.

The letter suggests that the House of Representatives and the Senate are considering legislation to address these issues. One bill, entitled the “Ending Forced Arbitration of Sexual Harassment Act” was introduced by a bipartisan group of senators in December 2017, and two House versions have since been introduced, although none of them address confidentiality clauses. In March of 2017, Senator Richard Blumenthal, the former Attorney General for Connecticut, along with several other democratic co-sponsors introduced to the Senate the “Mandatory Arbitration Transparency Act,” which would have curtailed the use of confidentiality clauses for arbitrable civil rights, consumer, employment disputes. That bill did not proceed to a vote.

Whether or not Congress will agree to ban predispute arbitration agreements for sexual harassment cases remains to be seen given courts’ willingness to enforce such agreements in the last 20 years.

© Copyright 2020 Murtha Cullina


About this Author

Sarah Gruber, Murtha Cullina, Litigation Lawyer, business law disputes attorney

As a member of the firm’s Litigation Department, Ms. Gruber represents clients in a variety of commercial and business law disputes, including in the areas of commercial litigation, bankruptcy and creditors’ rights.

Prior to joining Murtha Cullina, Ms. Gruber received her B.A., with general honors, from Johns Hopkins University, where she spent a semester studying in Madrid, Spain. She earned her Juris Doctor from Quinnipiac University School of Law, summa cum laude.

Salvatore Gangemi, Employment Litigator, Fair Labor Standards Act, Murtha Cullina

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. Mr. Gangemi advises clients with respect to state, federal and local employment laws, including the Fair Labor Standards Act, Title VII, Age Discrimination in Employment Act, Americans with Disabilities Act, Family Medical Leave Act, and New York State and City employment laws.

He handles matters in federal and state courts and before administrative agencies, such as the Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Commission on Human Rights, the United States Department of Labor, and New York State Department of Labor, among others.  In addition, Mr. Gangemi litigates matters involving misappropriation of trade secrets, restrictive covenants, breach of employment contract, fiduciary duty, and other work-related common law claims.