Debra S. Katz is founding partner of Katz, Marshall & Banks, a civil rights law firm in the District.
Uber and Lyft have taken a long-overdue stride this week toward addressing our nation’s sexual harassment epidemic: No longer will they force drivers, passengers and employees into private arbitration for individual claims of rape, harassment and other sexual misconduct.
With this announcement, the companies are joining Microsoft and a number of large firms that finally recognize what civil rights lawyers have known for a long time: Mandatory arbitration has played a major role in enabling sexual harassment and silencing victims.
According to a 2017 study by the Economic Policy Institute, the percentage of employees subject to mandatory arbitration clauses increased seven-fold between 1995 and 2017, with 56 percent of non-union private-sector workers now covered by these so-called agreements. The EPI has extrapolated from this data that more than 60 million American workers are barred from ever taking employment claims to open court. Given that women are 47 percent of the workforce, that means close to 30 million women cannot go to court if faced with sexual harassment.
The confidential arbitration process is uniquely ill-suited to prevent and remedy sexual harassment, favoring employers and the harassers they protect. The proceedings prevent potential witnesses from learning of claims and coming forward to testify on behalf of victims or to join group actions. Discovery is limited, impeding an employee’s ability to collect evidence and prove her case. Arbitrators’ decisions are not reported and are nearly impossible to reverse.
Such secrecy enables predatory harassers, such as Roger Ailes, the late Fox News executive, to target women for decades without public exposure. It was only when Fox News’s Gretchen Carlson made a savvy litigation decision to file suit against Ailes in state court, circumventing Fox News’s mandatory clause, that the public became aware of his decades of sexual harassment. This led to Ailes’s ouster in July 2016 and Bill O’Reilly’s downfall nine months later. As we saw again with Harvey Weinstein, sexual harassers and assailants whose misconduct remains confidential are empowered to continue their predation with impunity.
Arbitration provides employers with the “repeat player” advantage, which research shows strongly favors parties who appear more often before arbitrators over one-time participants. This is because the corporations that select arbitrators are