I.                  Introduction

Acting Chair Lipnic, Commissioner Feldblum, members of the Select Task Force for Sexual Harassment in the Workplace, thank you for inviting me to testify today.  As civil rights practitioners who represent clients facing sexual harassment of all forms, we welcome the opportunity to discuss how the law can evolve to deliver on the promise of equal protection.

The #MeToo movement that emerged in the wake of the Harvey Weinstein scandal has prompted a nationwide reckoning with the epidemic of sexual harassment and abuse, largely of women, that can no longer be ignored.  For civil rights practitioners, the movement has given our work profound urgency and affirms that sex discrimination has been frustratingly persistent, even as our political institutions purport to embrace equal rights.  Federal law has prohibited many forms of sexual harassment for 54 years, since the enactment of the Civil Rights Act of 1964, and yet we find ourselves in the 21^st century, inundated with evidence that women are routinely subjected to hostile work environments, psychological and physical abuse by co-workers and supervisors, and the hostility and complicity of management when they come forward with complaints.  The #MeToo movement speaks both to the importance and power of the law to protect workers, and its dramatic failures to prevent and remedy widespread harassment thus far.  The movement has provided invaluable information about how the law actually functions in women's lives; the implications are far reaching and will permeate the legal system for many years to come.

In these early days, five issues have emerged as starting points for reform.  First, mandatory arbitration clauses, which block the path to the courthouse for millions of women, are obvious procedural obstacles to meaningful recovery for harassment victims, and should be a top-priority for federal legislative reform.  Second, the risks and benefits of confidentiality provisions in employment agreements and non-disclosure agreements for harassment settlements must be carefully examined, and victims given the option for either disclosure or confidentiality where it serves their remedial interest.  Third, the law must catch up to the reality of the 21^st century economy by amending employment law to protect workers in non-traditional employment arrangements, such as freelance, contract, and temporary work.  This sector of the workforce is rapidly growing, pushing millions of workers into a legal no-man's land where they lack basic protections against sexual harassment (in addition to other well-established employment benefits).  Fourth, the law must establish a legal duty for employers to do more to prevent harassment, through mandatory training programs that actually work.  Finally, federal law must follow the lead set by a number of states in establishing personal liability for harassers under Title VII and increasing caps on damages.  Personal liability provides victims with an important tool in settlement negotiations and litigation and would-be harassers with a powerful deterrent.  Allowing personal liability against harassers and those who aid and abet discrimination provides an appropriate remedy for the harms that result from a harasser's misconduct.

Over the past 20 years, American employers have increasingly required employees to pursue workplace claims, including sexual harassment, through mandatory arbitration. According to a 2017 study by the Economic Policy Institute, between 1995 and 2017, the percentage of employees subject to mandatory arbitration clauses increased seven-fold, with 56% of non-union private sector workers now covered by these so-called "agreements."[1]  Researchers have extrapolated that around 61 million Americans in total are barred from litigating employment matters, leaving approximately 28 million women with no forum other than arbitration for pursuing their sexual harassment complaints.[2]

The arbitration process has numerous built-in disadvantages for complainants, some of which have a particularly negative impact on harassment victims.  At the outset, arbitration provides employers with the "repeat player advantage," which studies show strongly favors parties who appear more often before arbitrators over one-time participants.[3]  The process further disadvantages victims by limiting their access to legal representation.  Research shows and practitioner experience confirms that attorneys are much less likely to accept a client whose claim is subject to arbitration than one who can pursue litigation.[4] 

In addition to these systemic flaws, which affect all workers forced into arbitration as a condition of employment, arbitration has a uniquely harmful impact on the deterrence and remediation of sexual harassment.  As the #MeToo movement has made clear, victims are highly unlikely to report misconduct in real time when they feel they are alone in their experiences and the 2016 EEOC Select Task Force Report confirms that approximately 70% of victims never report harassment to their employer.[5]  The confidential nature of arbitration conceals both the severity and frequency of prior harassment, denying workers notice of misconduct and leaving management unaccountable for its response.  Confidential proceedings also prevent potential witnesses from learning of claims and coming forward to testify on behalf of victims or to join group action.  This secrecy enables predatory harassers, like Roger Ailes, to target women for decades without the risk of public exposure.  It was only when Gretchen Carlson made a savvy litigation decision to file suit against Ailes personally in state court, circumventing Fox News's arbitration clause, that the public became aware of his decades of sexual harassment of women, leading to his ouster and Bill O'Reilly's departure nine months later.[6]  As we saw again with Harvey Weinstein, legally binding victims to silence empowers their harassers and assailants to continue their predation and allows them to victimize women with impunity.

When taken together, the systemic disadvantages of mandatory arbitration have a predictable effect - few victims engage in the process, and those that do see remedies that fall short of recovery in open court.  Arbitration complainants recover on average just 16% of awards won in federal courts and 7% of those in state courts.[7]  The fundamental unfairness and inadequacy of mandatory arbitration for addressing sexual harassment is evident by one shocking fact: in the midst of the epidemic made undeniable by the voices of MeToo, the American Arbitration Association received a total of just 100 sexual harassment claims in 2016.[8]

Despite their harmful effect on anti-discrimination enforcement, courts have repeatedly upheld the validity of mandatory arbitration clauses under the broad authority of the Federal Arbitration Act (FAA).[9]  The most recent blow to employees came just last month in Epic Systems Corporation v. Lewis,[10] with the Supreme Court upholding mandatory arbitration clauses that bar employees from bringing class action claims under state and federal law.  Even prior to Epic Systems, the imperative for congressional action on this issue was apparent, and in December of last year, Senators Kirsten Gillibrand and Lyndsey Graham introduced the Ending Forced Arbitration of Sexual Harassment Act of 2017 to correct the judiciary's course.[11]  The bill would prohibit mandatory arbitration for "sex discrimination disputes," as defined by the provisions of Title VII, and would mark a sea change in the rights of American workers.[12]  The current Congress, however, is extremely unlikely to pass the bill, and its fate is uncertain following the next election cycle.

In the meantime, the #MeToo movement has been remarkably effective at raising awareness of corporate complicity in the harassment epidemic and exerting social pressure for change.  As a result, a number of high-profile employers have taken an unexpected lead in voluntarily abandoning mandatory arbitration for sexual harassment claims.  In December 2017, Microsoft announced that it would eliminate mandatory pre-dispute arbitration for its employees and publicly endorsed the Gillibrand-Graham bill.[13]  In May 2018, Uber and Lyft also announced they would no longer require arbitration for harassment complaints, and would instead permit employees to access mediation, arbitration, or litigation for resolution of their claims.[14]  As Uber's General Counsel Tony West stated when announcing the rescission of mandatory arbitration provisions at Uber, "sexual predators often look for a dark corner," and companies "need to turn the light on" by giving victim control over their claims.[15] 

Mandatory arbitration embodies many of the worst forces that have led to pervasive sexual harassment and assault in the American workplace.  It burdens victims by limiting their access to legal assistance and reducing their compensation for emotional and professional injuries that can be life-altering.[16]  It also reinforces the pernicious practice of valuing corporate secrecy over the well-being and legal rights of employees.  Perhaps most harmfully, mandatory confidential arbitration enables harassers to continue their patterns of abuse with no meaningful accountability.  It is this kind of systemic enabling that leaves generations of women vulnerable to harm, while egregious violations of federal law go unpunished.  While voluntary reform by industry leaders is important progress, tens of millions of American workers remain subject to legal agreements that eviscerate their right to be free from sex discrimination.  Federal action to eliminate the use of mandatory arbitration clauses for harassment and assault is necessary, and long overdue.

III.              Non-disclosure Agreements

In addition to mandatory arbitration, the #MeToo movement has brought attention to the use of non-disclosure agreements more generally.  With the power of disclosure more evident than ever, it is perhaps unsurprising that some advocates have argued that confidentiality is inherently harmful.  California State Senator Connie Leyva, for example, announced in November 2017 that she would introduce legislation outlawing non-disclosure agreements for sexual harassment claims, on the reasoning that "if there had been no secret settlement in the first [Weinstein] case, maybe there wouldn't be an additional 60 women."[17]  Existing California law currently prohibits non-disclosure agreements for, inter alia, civil claims related to "[a]n act that may be prosecuted as a felony sex offense."[18]

 However well-meaning, a per se ban on non-disclosure agreements for harassment claims ignores the reality of harassment and its impact on victims, and falsely lays the blame for subsequent abuse on workers, rather than the party legally responsible for maintaining a harassment-free workplace - employers.  In the real world, non-disclosure agreements function in different ways at different stages of the employment relationship and are sometimes crucial to protecting victims and encouraging reports of wrongdoing.  Put simply, confidentiality is harmful or beneficial to the degree that it respects the rights and autonomy of victims.

Abusive confidentiality agreements include non-disparagement provisions in employment contracts that are intended to prevent an employee from making in perpetuity negative statements about the employer or workplace conduct.  The Trump Company employment agreement, for example, reportedly barred employees from demeaning or disparaging Trump, his family members, or the company.  As part of a job offer, these provisions are effectively non-negotiable, and they put the employee on notice from the very start of employment that the company values its reputation above accountability for misconduct.  Such terms can and do have a chilling effect when an employee later encounters harassment because they establish an existing legal duty to stay silent.  Even though non-disparagement clauses have no legally binding effect on the right to file a claim of discrimination, they create an atmosphere hostile to open discussion of abusive behavior and can suppress reporting.

Threatening provisions about disclosure of workplace information that are presented in legalese are intended to intimidate employees into silence, and they do.  In one recent high-profile case, a restaurateur group's non-disparagement clause prohibited statements regarding the "personal and business lives" of the owner, his family, business associates, and others, and imposed a $500,000 penalty for each breach.[19]  Employees later reported their reluctance to speak out about harassment that they experienced or witnessed, for fear that doing so would expose them to catastrophic legal liability.[20]  Most employees who have no access to affordable legal services make the same calculation - with no resources to face legal action if their employer chooses to enforce draconian provisions of the employment contract, silence is the rational choice, and victims are coerced into forfeiting their rights.  Employers do have a reasonable interest in protecting their intellectual corporate property and protecting themselves against disclosures related to trade secrets.    However, enforcing comprehensive gag-rules on employees serves no legitimate purpose  and serves to actively obstruct employment law.

In contrast to these preemptive, pre-dispute employer-drafted confidentiality provisions, non-disclosure agreements are long-standing, traditional components of pre-litigation settlement for claims that have already been raised, and these provisions can have enormous value to harassment victims.  Often portrayed as "buying someone's silence," settlements in fact occur only where both parties agree that litigating a particular claim would not be in either's interest. Employers routinely insist on non-disclosure, often to protect their reputations.  But in our experience, the employee also benefits from mutual confidentiality.  Many victims do not want their former employer to be able to share details about an experience that was highly personal and traumatizing; they may be embarrassed by the events or simply want to start fresh with new employment.  There are also serious professional and personal costs to disclosure of a sexual harassment claim, particularly in the internet age when information is readily available and nearly impossible to remove from the public sphere.  Retaliation is real.  And prospective employers are often reluctant to hire applicants who have raised legal claims in prior employment, regardless of the merits, and search for publicly available information during the hiring process; this indirect retaliation can change a victim's career path indefinitely.  Victims also may want to avoid being associated with their harassment for emotional reasons; the permanence and accessibility of the internet can make closure about the event more difficult.  The victim's interest in privacy, particularly after an experience of sexual harassment, should be respected and prohibiting settlement non-disclosure agreements would almost certainly deter many people from coming forward at all.

In addition to the importance of giving victims optional protection against employer disclosures, forcing harassment settlements into public view has the paradoxical effect of singling victims out for less negotiating power than a typical civil litigant.  Nearly all settlements of civil claims - including other kinds of harassment, personal injury, and contract disputes - include non-disclosure provisions, and the term is often an essential condition for the parties' agreement.  Without this leverage, sexual harassment victims are dramatically less likely to secure settlements and receive any compensation for their injuries.  Imposing a unique burden on women who come forward to notify their employers of unlawful behavior and receive the compensation they are entitled to by law is misguided.

New York has recently adopted a regulatory approach that is flexible and victim-centered, which will hopefully serve as a model to other states.  Effective July 2018, New York employers are prohibited from requiring non-disclosure provisions in harassment settlements, and employees must be given 21 days to determine whether they will voluntarily enter a confidentiality agreement.[21]  There is an additional seven-day rescission period to further protect workers who, for whatever reason, reconsider their decision.[22]  This framework recognizes that silence can be coercive or protective, depending on the context, and that victims should ultimately have the right to determine whether their narratives become public.

The current debate over confidentiality has largely been framed by a false choice between victim privacy and harasser accountability.  State Sen. Leyva's troubling comment exemplifies the fallacy of this conflict by suggesting that Weinstein's victims were responsible for the continuation of his harassment.  In fact, institutional complicity enables mass victimization, not the choices of individuals who have faced the abuse.  

Non-disclosure agreements can, in some cases, provide the security that victims need to come forward to their employers with allegations of sexual harassment.  Efforts should therefore be focused not on denying them a protection available to all other civil litigants, but instead on the broader question of how to hold employers responsible for harboring known abusers. Companies will take discrimination seriously when meaningful incentives and deterrents make doing so worthwhile, and this effort should not come at the expense of victims who value a guarantee of privacy while they heal from abusive conduct.

As the #MeToo movement changes perceptions of sexual harassment, the American economy itself is taking on a new, more amorphous shape. Non-traditional employment - including freelancing, seasonal and temporary work, and remote positions - has taken off in all sectors of the economy.  In 2016, the National Bureau of Economic Research reported that the "alternative workforce" constituted 15.8% of the American employee base, and another private study has estimated that 57 million Americans engaged in freelance work in 2017 alone.[23]  Title VII, passed in 1964 and fleshed out by federal courts over the following decades, increasingly reflects an outdated concept of employment that leaves many workers exposed to harassment while they earn a living.

The crux of the problem is that Title VII only prohibits sex discrimination against "employees," leaving independent contractors without any federal protection.  This stark categorical scheme creates predictable incentives for employers to misclassify workers as independent contractors to avoid liability under Title VII, and to evade other employment-related legal duties (e.g., tax and benefit obligations).  Gig economy employers have exploited independent contracting exceptions in myriad ways to maximize profit at the expense of worker security,[24] and this approach holds unique risks for sexual misconduct.  The flexibility touted as a major benefit of today's gig economy is, in fact, a known risk factor for sexual harassment.[25] Non-traditional employees who work with little or no access to procedures that can prevent, identify, and address abuse are inherently more vulnerable to harassment by clients and customers, and minimal connections to management make reporting and remediation exceptionally difficult.  Increased risk can also flow the other way, with gig economy employers failing to protect clients and customers from their employees.  In April 2018, CNN reported that at least 103 Uber drivers and 18 Lyft drivers have been arrested, issued warrants, or named in civil suits for sexual assault of passengers.[26]  Incidents of less severe misconduct must surely be high, as well, considering the ubiquity of sexual harassment in work settings more generally.

            Closing the gap in discrimination protections for non-traditional employees will take a multi-pronged approach.  First, the existing criteria for categorizing employees should be properly enforced, ensuring that the current protections under Title VII reach all eligible workers.  Looking beyond enforcement priorities, which are subject to drastic changes under different administrations, federal law must be amended to redefine "employees" to include all workers whose conduct is within the economic control of an employer.  Without fundamental redefinition of employment protections, non-traditional workers will remain doubly vulnerable to harassment - more exposed to harm, and less empowered to secure any meaningful relief.

V.               Mandatory Harassment Training

As civil rights practitioners know well, employers and employees alike are often unaware of how to report and properly address sexual harassment complaints.  Advocates have worked to close the knowledge gap for decades, and periodic movements to require sexual harassment training in the workplace have met with rather limited success at the state level thus far.  To date, only four jurisdictions require harassment training for employers of varying sizes.  Nearly thirty years ago, in 1991, Maine passed the nation's first mandatory training law, which requires employers with 15 or more employees to provide basic information to all new hires.[27]  The following year, Connecticut mandated that employers with 50 or more employees train all supervisors in sexual harassment policies.[28]

More recent legislative action has established or updated mandatory training programs in California and New York.  In 2017, California expanded its existing mandatory training law - requiring employers with 50 or more employees to train supervisors every two years - to expressly require training related to gender identity, gender expression, and sexual orientation discrimination.[29]  Earlier this year, in February 2018, State Senator Holly Mitchell introduced Senate Bill No. 1343 to significantly broaden the statute's reach even further.  Under the proposed amendment, employers with five or more employees, including seasonal and temporary workers, would be required to train all employees in anti-discrimination policies.[30]

It is in New York, the epicenter of the Weinstein scandal, where mandatory training has made the most dramatic strides.  The state's most recent budget provides that, effective October 2018, all employers must provide annual harassment training to all employees.[31]  Standards for the training are explicit and thorough, specifying that employers must "provide examples of prohibited conduct," provide a standard complaint form, state clearly that engaging in or knowingly permitting harassment is misconduct that will be sanctioned, and expressly prohibit retaliation.[32]

The 2016 EEOC Select Task Force Report collected research data and anecdotal evidence supporting the importance of effective harassment training.[33]  While there is some evidence that certain forms of training worsen attitudes towards preventing harassment, most forms of training appear to improve awareness of what constitutes harassment and encourage victims to report misconduct.[34]  Practitioner experience confirms these findings - in all too many cases, employees facing harassment have no clear framework for understanding what constitutes unlawful conduct, no clear path to report complaints (particularly when the harasser is a direct supervisor), and no accurate sense of their employer's obligation to address abuse.  While mandatory programs may elicit groans as a 'waste of time,' the fact remains that victims can only bring harassment to light if they know what the law prohibits and who to tell.  To that end, effective training must involve all employees and be specific, clear, and accessible, leaving no doubt that misconduct (and retaliation) will be taken seriously.  In many accounts brought to light by #MeToo, women endured months, even years, of harassment because they lacked basic information about their rights and how to claim them.  Effective mandatory training prevents employers from evading their responsibility to prevent and remedy misconduct, establishing a baseline for the entire workplace.

Most importantly, effective mandatory training must be directed and available to all levels of employees.  While supervisor-oriented interventions, like those mandated in Connecticut and California, are better than nothing, this approach ignores the reality of harassment at the supervisory level.  Indeed, it is harassment by supervisors, managers, and executives that is most difficult to confront, and that leaves employees most vulnerable to retaliation.  Prolific serial harassers like Roger Ailes and Bill O'Reilly at Fox News, Harvey Weinstein at The Weinstein Company, John Lasseter at Pixar - to name a high-profile few - illustrate why corporate gatekeepers must have external checks on their discretion.  New York's recent training statute provides a positive model for other states, with its unambiguous standards for disclosure that are designed to give victims a clear path to relief.

            Despite the highly personal nature of sexual harassment, federal antidiscrimination law is oriented towards the duties and liability of employers rather than those of individual wrongdoers.  As such, there is no cause of action available under Title VII against a harasser in his or her personal capacity.  The statute's liability reach contracted even further in 2013, when Vance v. Ball State University held that employers are only vicariously liable for discrimination by supervisors who can carry out "tangible employment actions against the victim."[35]  Statutory and common law at the state level, however, can provide for individual liability in certain cases, providing an important avenue for relief.

            While all states recognize tort actions that encompass some harassing conduct, such as intentional infliction of emotional distress, these claims often set unattainable standards for plaintiffs in even the most egregious cases of discrimination.  More useful for the vast majority of victims is the specific recognition of personal liability for sexual harassment, which a number of states have adopted.  Massachusetts, Michigan, Missouri, Montana, New Mexico, Washington, and the District of Columbia all provide for recovery against supervisors who engage in sexual harassment.[36]  Under California, Iowa, and Vermont law, harassers may be held personally liable for their conduct, regardless of whether their victims are subordinates.[37]

            Individual liability for sexual harassment serves a number of important functions in the effort to prevent and remedy discrimination.  First, when combined with effective training, it provides a significant deterrent to would-be harassers.  A major revelation from the #MeToo reckoning has been the plain fact that discipline and termination standing alone do nowhere nearly enough to prevent abuse.  Accounts show repeatedly that abuse flourishes in environments of low or no accountability, and corporate-only liability for harassment protects abusers from direct consequences for their actions. Imposing direct liability on harassers raises the "costs" of harassment by increasing the personal risks associated with opportunistic, exploitative conduct. This is especially important when a harasser wields great power in the workplace and his employer is unlikely to impose any meaningful sanctions.  In the case of Roger Ailes, for example, it was New Jersey's personal liability provision that enabled Gretchen Carlson to bring an action against him in his individual capacity, circumventing the corporate protections that had otherwise shielded Ailes for decades.

            Second, individual liability gives victims much-needed leverage in the pursuit of compensation for their injuries and decreases the chance that their employer will sweep harassment under the rug to protect an abusive employee.  The potential for the public exposure of a specific harasser is, unfortunately, not always enough to prompt a meaningful response.  Bill O'Reilly reportedly paid $45 million to settle harassment claims from multiple victims while continuing to earn massive contracts with Fox News, and Harvey Weinstein also reportedly reached settlements with eight women while maintaining his leadership of his company.[38]  In more typical cases, however, employers are less likely to shield employees who can face, or have faced, personal legal action for their unlawful harassment.

            Finally, personal liability for sexual harassment makes a powerful symbolic statement about the harm that this conduct inflicts on victims.  The effect radiates far beyond the workplace itself - it can derail professional development, sometimes for decades; create significant emotional and psychological injuries; negatively impact physical health; and affect personal and family relationships.  #MeToo brings to light that abusive, hostile work environments shape the arc of women's lives.  A basic principle of our legal tradition holds that individuals must be responsible for the harms they knowingly cause to others - sexual harassment should be no exception. Title VII's imposition of corporate liability is necessary but not sufficient to establish meaningful accountability for discrimination, and the law should more accurately reflect the reality of this harm.

VII.        Conclusion

The #MeToo movement forces society to see the gaps between the promises of our politicians and lawmakers and the realities of individuals, face to face in the workplace.  Title VII and state laws to prohibit harassment have been thwarted for too long by evasions that the legal system itself has sanctioned.  Through procedural work-arounds, limiting constructions of statutory language, low standards for harassment prevention, and a narrow focus on traditional employers, Title VII's ability to prevent and remedy sexual harassment has been significantly weakened.  The #MeToo movement illustrates the immense cost of that failure.  The law must become more responsive to the real-world needs for equal protection, or inequality will only become further entrenched, and we will continue to lose out on the talent and ability of millions of American women.  

 

 

Addendum

While state and federal lawmakers are beginning to introduce some reforms on the five issues addressed in our testimony, the flawed status quo remains in place while the legislative process unfolds slowly and unpredictably.  To address the current needs of sexual harassment victims, made so apparent by #MeToo, the National Women's Law Center (NWLC) has established financial and educational resources that help protect women today.  These resources identify and address obstacles to reporting and legal representation, and can provide further context for the issues before the Select Task Force.      

The NWLC Legal Network for Gender Equality, of which we are members, is a network of more than 700 attorneys who are committed to providing free initial legal consultation for sexual harassment complaints and, where appropriate, on-going representation.[39]  The #MeToo movement has highlighted that victims are often unfamiliar with engaging an attorney and unable to afford legal services, and the Legal Network aims to make representation more accessible.

To further increase accessibility to legal services, the NWLC administers the Time's Up Legal Defense Fund, which provides financial support for legal expenses and free public relations assistance.[40]  The program was designed with consideration for the needs of low-income women and women of color in particular, who face unique obstacles navigating the legal system and media.

The NWLC has also published #MeTooWhatNext: Strengthening Workplace Sexual Harassment Protections and Accountability (2017),[41] a resource for attorneys, lawmakers, employers, and employees to understand current sexual harassment law and areas in need of urgent reform.  The Report provides policy analysis and recommendations concerning:

• extending Title VII to unprotected classes of employees;
• strengthening employer and individual liability for sexual harassment;
• eliminating damages caps to adequately compensate victims;
• regulating non-disclosure agreements to protect victim privacy;
• mandating effective sexual harassment training; and
• eliminating the tipped wage to reduce harassment of vulnerable workers.

 

 

 

[1] See Alexander J.S. Colvin, The Growing Use of Mandatory Arbitration, Economic Policy Institute Report 4-5 (Sept. 2017), https://www.epi.org/publication/the-growing-use-of-mandatory-arbitration/.

[2] Id.; Dept. of Labor, Women of Working Age - Labor force by sex, race and Hispanic ethnicity: 2016 annual averages and 2024 projections, https://www.dol.gov/wb/stats/NEWSTATS/latest/demographics.htm#three (reporting that women make up 49.8% of the total workforce).

[3] Alexander J.S. Colvin and Mark D. Gough, Individual Employment Rights Arbitration in the United States: Actors and Outcomes, 68 Indus. and Lab. Rel. Rev. 1019, 1033-34 (2015), https://ecommons.cornell.edu/handle/1813/75684.

[4] Katherine V.W. Stone and Alexander J.S. Colvin, The Arbitration Epidemic, Economic Policy Institute Briefing Paper #414, 21-22 (Dec. 2015), https://www.epi.org/files/2015/arbitration-epidemic.pdf.

[5] Report, EEOC Select Task Force on the Study of Sexual Harassment in the Workplace 16 (2016),

Select Task Force on the Study of Harassment in the Workplace: Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic (PDF)

.

[6] Michael M. Grynbaum and John Koblin, Gretchen Carlson of Fox News Files Harassment Suit Against Roger Ailes, N.Y. Times (Jul. 6, 2016), https://www.nytimes.com/2016/07/07/business/media/gretchen-carlson-fox-news-roger-ailes-sexual-harassment-lawsuit.html; Emily Steel and Michael S. Schmidt, Bill O'Reilly Is Forced Out at Fox News, N.Y. Times (Apr. 19, 2017), https://www.nytimes.com/2017/04/19/business/media/bill-oreilly-fox-news-allegations.html.

[7] Stone and Colvin, The Arbitration Epidemic, supra note 4 at 19.  

[8] Jacob Gershman, As More Companies Demand Arbitration Agreements, Sexual Harassment Claims Fizzle, Wall St. Journal (Jan. 25, 2018) (reporting that the AAA stated there were "around 100" sexual harassment claims submitted in 2016).  Data for 2017 have not yet been published, but the AAA has confirmed to the authors by email that the figure is almost the same.    

[9] See, e.g., AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) (FAA preempted state's authority to prohibit waivers of class-wide arbitration).  Robust preemption doctrine did not stop New York from including a bar on mandatory arbitration for sexual harassment claims, as part of its recent overhaul of sexual harassment law. N.Y. Legis. Assem. 7507. Reg. Sess., Part KK, Subpart B (Jan. 18, 2018).  While the statute will not likely survive a challenge under the FAA, its passage sends a strong signal that mandatory arbitration for harassment is a major systemic obstacle to justice.

[10] No. 16-285, --- S. Ct. --- (2018), https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf.

[11] Sen. 2203, 115^th Cong. (2017), https://www.congress.gov/bill/115th-congress/senate-bill/2203/text?format=txt.

[12] While legislative protection for harassment claims is vitally important, mandatory arbitration clauses typically extend to all employment claims - including claims of discrimination on the basis of race, age, and other characteristics, and claims under federal wage statutes - and undermine a wide variety of important employee protections.  For the reasons outlined in the harassment context, mandatory arbitration is inappropriate to all claims for workplace rights and should be categorically prohibited in employment contracts. 

[13] https://blogs.microsoft.com/on-the-issues/2017/12/19/microsoft-endorses-senate-bill-address-sexual-harassment/.

[14] Laharee Chatterjee, Uber, Lyft Scrap Mandatory Arbitration for Sexual Assault Claims, Reuters (May 15, 2018); https://www.reuters.com/article/us-uber-sexual-harassment/uber-lyft-scrap-mandatory-arbitration-for-sexual-assault-claims-idUSKCN1IG1I2.  A number of large law firms have also responded to public pressure, rescinding mandatory arbitration clauses for their own employees.  See Meghan Tribe, Will Law Firms Bow to Pressure to End Mandatory Arbitration?, The American Lawyer (May 24, 2018), https://www.law.com/americanlawyer/2018/05/24/will-law-firms-bow-to-pressure-to-end-mandatory-arbitration/.

[15] Tony West, Turning the Lights On, Uber Newsroom (May 15, 2018); https://www.uber.com/newsroom/turning-the-lights-on/.

[17] Danielle Paquette, How Confidentiality Agreements Hurt - and Help - Victims of Sexual Harassment, Wash. Post (Nov. 2, 2017), https://www.washingtonpost.com/news/wonk/wp/2017/11/02/how-confidentiality-agreements-hurt-and-help-victims-of-sexual-harassment/?utm_term=.48a428b979f0.

[18] Cal. Civ. Proc. Code § 1002.

[19] Maura Judkis and Tim Carman, Mike Isabella's restaurants used nondisclosure agreements to silence sexual harassment accounts, lawsuit alleges, Wash. Post (Apr. 3, 2018), https://www.washingtonpost.com/lifestyle/food/mike-isabellas-restaurants-used-nondisclosure-agreements-to-silence-sexual-harassment-accounts-new-lawsuit-alleges/2018/04/03/aaf6f766-373e-11e8-9c0a-85d477d9a226_story.html?utm_term=.0cbfcd8f7352.

[20] Id.

[21] N.Y. Legis. Assem. 7507. Reg. Sess., Part KK, Subpart D (Jan. 18, 2018).

[22] Id.

[23] Laurent Belsie, Explaining the Growth of the Alternative Workforce, The NBER Digest (Dec. 2016), http://www.nber.org/digest/dec16/w22667.html;  Upwork, Freelancers predicted to become the U.S. workforce majority within a decade, with nearly 50% of millennial workers already freelancing, annual 'Freelancing in America' study finds," Oct. 17, 2017, https://www.upwork.com/press/2017/10/17/freelancing-in-america-2017/.  The federal government has not consistently collected data regarding the prevalence of non-traditional employment, a glaring deficiency as the economy continues to rapidly shift towards this form of work. See U.S. Dept. of Labor Blog, Measuring 'Gig' Work, Mar. 5, 2016, https://blog.dol.gov/2016/03/05/measuring-gig-work (noting intermittent studies of the alternative workforce since 1997).  The Bureau of Labor Statistics recently released the results of its May 2017 survey of contingent and alternative work arrangements, reporting that 13.9% of the total work force (approximately 21 million people) was employed in these categories.  Bureau of Labor Statistics, Contingent and Alternative Employment Arrangements Summary (June 7, 2018), https://www.bls.gov/news.release/conemp.nr0.htm.

[24] See Sarah Leberstein & Catherine Ruckelshaus, Nat'l Employment Law Project, Independent Contractor vs. Employee: Why Independent Contractor Misclassification Matters and What We Can Do To Stop It (2016) 1-2, https://www.nelp.org/publication/independent-contractor-vs-employee/ (collecting accounts of high-profile companies misclassifying employees).

[25] Report, EEOC Select Task Force on the Study of Sexual Harassment in the Workplace, Part E (2016), https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm#_Toc453686305;  Nathan Heller, The Gig Economy Is Especially Susceptible to Sexual Harassment, New Yorker (Jan. 25, 2018), https://www.newyorker.com/culture/cultural-comment/the-gig-economy-is-especially-susceptible-to-sexual-harassment.  

[26] Sara Ashley O'Brien, Nelli Black, Curt Devine and Drew Griffin, CNN investigation: 103 Uber drivers accused of sexual assault or abuse, CNN.com (Apr. 30, 2018), http://money.cnn.com/2018/04/30/technology/uber-driver-sexual-assault/index.html.

[27] Me. Rev. Stat. tit. 26, § 807(3) (2016).

[28] Conn. Gen. Stat. § 46a-54-204 (2016).

[29] Cal. Gov't Code § 12950.1(a) (West 2016).

[30] Proposed amendment available at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB1343.

[31] N.Y. Legis. Assem. 7507. Reg. Sess., Part KK, Subpart E (Jan. 18, 2018).

[32] Id.

[33] EEOC Select Task Force Report (2016), supra note 4 at 44.

[34] Id.

[35] 570 U.S. 421, 431 (2013).  In reaching this ruling, the Court rejected the "colloquial" understanding the word supervisor in favor of a more narrow, technical definition, limited to individuals empowered "to effect a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."  Id. (internal quotation marks and citation omitted).

[36] See Maya Raghu & JoAnna Suriani, #MeTooWhatNext: Strengthening Workplace Sexual Harassment Protections and Accountability, NWLC.org (Dec. 21, 2017), https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwiCspKdpLruAhXvEVkFHco4AhsQFjAAegQIARAC&url=https%3A%2F(collecting cases).

[37] Id.

[38] Emily Steel and Michael S. Schmidt, Bill O'Reilly Settled New Harassment Claim, Then Fox Renewed His Contract, NY Times (Oct. 21, 2017), https://www.nytimes.com/2017/10/21/business/media/bill-oreilly-sexual-harassment.html; Jodi Kantor and Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades, NY Times (Oct. 5, 2017), https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html.

 

[39] https://nwlc.org/about/

[40] Id.

[41] https://nwlc.org/resources/metoowhatnext-strengthening-workplace-sexual-harassment-protections-and-accountability/.