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Sexual harassment at work: Litigate or arbitrate?


A bipartisan coalition in Congress is taking aim at corporate agreements that it says silence victims of sexual harassment and assault.

U.S. Sen. Kirsten Gillibrand, the New York Democrat, and U.S. Rep. Cheri Bustos, a Democrat from Illinois, this month announced the Ending Forced Arbitration of Sexual Harassment Act of 2017, legislation that would prevent employers from holding employees to forced arbitration agreements to settle “a sex discrimination dispute.”

According to the lawmakers, an estimated 60 million Americans are subject to forced arbitration clauses, which require employees to settle disputes with their employers through an arbitration process.

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“When a company has a forced arbitration policy, it means that if a worker is sexually harassed or sexually assaulted in the workplace, they are not allowed to go to court over it,” Gillibrand said. “Instead, they have to go into a secret meeting with their employer and try to work out some kind of deal that really only protects the predator.”

By those agreements, said Gillibrand, employees are forbidden from talking about what happened and are expected to “keep doing their job as if nothing happened to them.”

“No worker should have to put up with such an unfair system,” she said.

Proponents say the legislation would allow survivors of sexual harassment or discrimination to seek justice, discuss their cases publicly and eliminate institutional protection for harassers.

“I like having options,” said Anne M. Janiak, CEO of the Women’s Enterprise Development Center Inc. in White Plains. “I like having women not being forced to do something one way in order to get a result. I think (the legislation) is a good thing, but whether it’s going to change things, I’m not sure.”

In announcing the legislation, members of Congress were joined by former Fox News host Gretchen Carlson, author of the recent best-seller “Be Fierce: Stop Harassment and Take Your Power Back,” who said that “forced arbitration is a harasser’s best friend.”

“It keeps harassment complaints and settlements secret,” said Carlson, whose workplace sexual harassment lawsuit in 2016 brought forth similar claims from several other female employees at Fox News and led to the resignation of the disgraced Roger Ailes as the cable news network’s chairman and CEO. “It silences other victims who may have stepped forward if they’d known,” she said.

For companies, arbitration is typically a cheaper alternative to litigation and cases are usually decided by one or more hired arbitrators. Unlike the public records of a court proceeding, arbitrations are kept confidential and an arbitrator’s decisions are usually difficult or impossible to appeal.

Kim Berg, an attorney with Gould & Berg LLP, an employment law firm in White Plains, said forced arbitration clauses are typically used in midsize or larger companies.

“Smaller companies, mom and pops, small businesses tend not go there, but large companies have learned that litigation can be very expensive, even if the employee does not have a viable claim,” she said.

Berg said many employees do not think twice before signing arbitration agreements because the alternative would be to walk away jobless. “A lot of times these are clauses that are offered or required at the beginning of employment or at the time of promotion,” she said. “Their (employees’) goal is to get a paycheck. They only come to realization of what they’ve signed after the fact.”

As for sexual harassment in the workplace, “It’s definitely always been out there,” said Berg. The whole ‘Me Too’ thing just brought it to life,” she said, referring to the viral online movement encouraging women to share their own experiences of harassment.

While there is a general consensus that something must be done to combat sexual harassment in the workplace, some question whether the proposed legislation is the correct step.

“To me, that’s like focusing on how to treat an injury after it’s occurred, rather than focusing on how to prevent the injury,” said Joseph A. Saccomano Jr., an attorney and office managing principal in the White Plains office of Jackson Lewis PC.

Robert Mitchell, an employment lawyer and principal with Stratford law firm Mitchell and Sheahan PC, said pushing more of these cases into the court system “hurts everyone, including the victim,” adding that a lengthy trial will likely delay a case’s outcome.

“Most of the victims are interested in getting a resolution of their case and in our (court) system you get paid money,” Mitchell said. “You get cash. This (legislation) delays that.”

While proponents say the act will give victims a better opportunity to come forward, some believe that forcing these cases to trial could in fact dissuade victims from speaking out.

“Every aspect of their life that surrounds this is going to come forward in a trial,” said Saccomano, from their public Facebook profiles to past relationships.

“They make them out to be whores,” Berg said of victims who take their cases to trial. “Women are made to feel like they did something to invite or welcome it.”

A public trial could also have an impact on a victim’s career, attorneys said. While an outright refusal to hire a prospective employee based on her history of claims of sexual harassment is against the law, attorneys say that reality paints a different picture.

“A lot of times, the employee wants confidentiality because they don’t want to apply for another job and somebody find out about their past and think, Oh, this person is going to be a complainer, we don’t want to end up getting sued too,” Berg said.

Robin Imbrogno, president of The Human Resource Consulting Group in Seymour, Connecticut, said that while the legislation may be well-intended, the focus is misplaced.

“I almost feel like they’re missing the real point in all of this. I’m not suggesting that in some businesses, (arbitration) may have been used to facilitate bad behavior, but I think there are so many other things they could be doing, like mandatory sexual harassment training and education for all employees,” Imbrogno said.

At many organizations, that education has already started.

“What companies are going to have to do, and what we’ve done at WestMed, is at a very granular level, differentiate what’s acceptable behavior,” said Joseph DiCarlo, senior vice president of human resources at Westmed Practice Partners in Purchase.

DiCarlo added that while WestMed has always taken pride in its strong stance against sexual harassment, the company has taken additional steps to strengthen its policies in recent months.

“Last year, it was OK to put in your policies, ‘Go to Human Resources, go to your manager,’ but the bar has changed,” he said. “You have to specifically tell your people, ‘This is the name of the person you should go to, this is their phone number.’ It’s very important in this environment to allow employees different resources and different routes to report if they feel they’ve been the victim.”

Whether or the legislation is passed by Congress, many think the renewed focus on sexual harassment in the workplace is more than fleeting.

“I think there’s a paradigm shift going on,” said Fran Pastore, CEO of the Women’s Business Development Council in Stamford. “I love what’s happening, and I hope it doesn’t stop. I hope it gives rise to an entire movement.”

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  1. Regarding the debate on mandatory arbitration of sexual harassment cases, I note there is no discussion of proactive solutions that address the root causes and work to prevent workplace bullying and sexual harassment before it happens. It would be smart business practice for organizations to focus on the actual problem and work to stop workplace bullying and sexual harassment when it occurs. As noted by Joseph A. Saccomano Jr. in the article – this discussion is about how to resolve claims not how to stop the problem in the first place. More organizations and leaders need to take a stand and prevent those in power from abusing co-workers. A zero tolerance for bullying or harassment will reduce the need for arbitration or lawsuits thus adding more profit to the bottom line.


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