I think we can all agree Harvey Weinstein’s actions were disgusting and unacceptable. For a man in a position of authority to use his power and influence in such a horrible way should be unthinkable, but unfortunately this is far from an isolated incident. Situations like this are far too common, and one reason for that is that people like Weinstein are preventing us from hearing from their victims.
Mandatory confidentiality agreements keep victims from speaking out, and arbitration clauses prevent them from suing in court. If we’re serious about stopping this kind of abuse, we need to be serious about giving victims the legal tools they need, and that means getting rid of mandatory arbitration agreements.
Many employees are required to sign employment agreements with terms forbidding any public criticism of the employer or managers. Now, this may be unenforceable because of the Wagner act, but few employees are inclined to try to find out the hard way. Confidentiality agreements keep victims of harassment from publicly naming their assailant, which not only forces them to live in silence, but also leaves potential victims in the dark about what they may be facing by working with the assailant. These agreements all but institutionalize the cover-up process in many companies.
Many employees are also required to agree to mandatory, confidential arbitration of any disputes with their employer or fellow employees — giving up their right to a trial by jury, which is supposed to be guaranteed by the Seventh Amendment. This could be regulated, but the Trump appointees to the National Labor Relations Board do not seem inclined to do so. The arbitration is almost always very employer friendly, leaving employees in a disadvantaged position from the beginning in any dispute.
When complaints are made, the victims often get financial settlements, and agree to keep both the assault and the settlement confidential. But the victims are often afraid of retaliation, either in their employment, or in their occupation more widely if they are seen as complaining or standing up for their rights.
One partial solution would be to pass the Arbitration Fairness Act of 2017. Arbitration agreements are enforceable in both federal and state courts because of a federal law (The Federal Arbitration Act) which preempts state laws. That law was passed to facilitate large complex commercial litigation, where the two parties agreed to have their dispute heard by arbitrators rather than a court. Congress at the time clearly did not have employment disputes in mind. The Arbitration Fairness Act would restrict that to cases where the two parties really do have similar bargaining power, not for employment disputes.
Because employees and employers really don’t have similar bargaining power. Without some sort of organized labor force, employers will naturally have more power when dealing with their employees. These arbitration clauses are unfair to employees, and they reflect the same skewed power dynamics that are present in a much more sinister way in cases like Weinstein’s. There is no reason an employee should be obligated to keep sexual harassment a secret, regardless of what the company wants them to sign when they become employed.
We can’t expect companies to change their policies out of the goodness of their hearts, but we can expect our elected officials to do something about this. The Arbitration Fairness Act of 2017 should be a no-brainer way not only to protect employees from unfair employments situations, but also from some of the worst predators in the professional world.