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.