March/April 2019

Highlights

Eliminating Mandatory Arbitration of Sexual Harassment Claims

Maureen Mulligan

In August 2018 the ABA House of Delegates passed Resolution 300, introduced by the ABA Commission on Women in the Profession:

RESOLVED, that the American Bar Association urges legal employers not to require mandatory arbitration of sexual harassment claims.

Sexual harassment takes place in law firms much more frequently than has been publicly acknowledged. Studies conducted by the ABA and state and local bar associations show an astounding level of sexual harassment in law firms and other legal employment settings. The ABA 2017–18 Presidential Initiative study, Achieving Long-Term Careers for Women in Law (initiated in 2017 by President Hilarie Bass and continuing under President Bob Carlson), shows that 49 percent of women lawyers in the nation’s 350 largest law firms “received unwanted sexual contact” at work and 28 percent of women lawyers “avoided reporting sexual harassment.” (Most of the information and statistics noted in this article can be found in the report submitted by the Commission regarding Resolution 300, which can be found on the ABA website.) Although the ABA Presidential Initiative study looked at the largest law firms in the country, research from state and local bar associations across the country makes clear that the problem of sexual harassment exists in many legal settings, not just these large firms.

The Problems Associated With Arbitration

The use of mandatory arbitration agreements to resolve employment disputes, including sexual harassment claims, has increased significantly in the last 20 years. This includes their use in law firms. The report to the House of Delegates with Resolution 300 acknowledges that arbitration can be an excellent cost- and time-efficient choice for resolving disputes when both parties involved agree to arbitrate and consent to the private process. But, without this consent, the behind-closed-door resolution of sexual harassment claims does not only impact the resolution for the victim, it also prevents a transparent evaluation of, and a conversation regarding, any necessary culture changes that need to take place to eliminate future harassment.

The #MeToo movement has forced a public conversation about workplace harassment. This collective dialogue that has taken place in person, in writing and on social media highlights the need for a transparent, open conversation about cultural workplace changes. But the report on Resolution 300 proffers that conversations about systemic change cannot take place if victims of harassment are silenced by nondisclosure and mandatory arbitration agreements that prevent instances of harassment from being discussed in the workplace.

Addressing the Arbitration Issue

By passing Resolution 300, the ABA and the Commission have challenged the legal profession to take the lead on sexual harassment “and to make clear that mandatory arbitration of sexual harassment claims should not be required by legal employers.” The adoption of Resolution 300 puts the ABA in the forefront of seeking to eliminate mandatory arbitration provisions that do not have mutual consent. The Commission has numerous resources online to assist in starting conversations addressing sexual harassment in the workplace. Go to americanbar.org/groups/diversity/women to see recent publications and toolkits, which include (1) the Zero Tolerance Program Toolkit: Identifying and Combating Sex-Based Harassment in the Legal Profession; (2) the Commission’s report, created with the Minority Corporate Counsel Association, You Can’t Change What You Can’t See; and (3) the Presidential Initiative study on Achieving Long-Term Careers for Women in Law (forthcoming).

The ABA’s support of an open process for the resolution of sexual harassment claims is not an isolated request. Resolution 300 is part of a broader movement to address the impact of sexual harassment in the workplace. A number of states have expressed a public policy to exclude sexual harassment from mandatory arbitration agreements. In addition, on Feb. 12, 2018, the National Association of Attorneys General from every state, the District of Columbia and the U.S. territories issued a letter to the U.S. House and Senate leadership asking for support in enacting needed legislation to protect victims of sexual harassment in the workplace. The attorneys general particularly emphasized that ending mandatory arbitration of sexual harassment claims would help “put a stop to the culture of silence that protects perpetrators at the cost of their victims.”

The push to eliminate mandatory arbitration agreements from cases of sexual harassment exists in the corporate arena as well. Microsoft, Uber and Lyft have each announced that they will not enforce mandatory arbitration against employees who complain of sexual harassment. And Google experienced a worldwide walkout protesting its sexual harassment policies.

Some legal employers have already eliminated mandatory arbitration for employees. In addition, under pressure from law schools and law students, many of the largest firms have eliminated mandatory arbitration for summer associates. But a significant number of firms have remained silent. In May 2018 a group of law schools sent out letters to 374 law firms and legal organizations asking for their policies on mandatory arbitration provisions related to summer associates. Only about half of those legal employers responded.

Law students have turned to social media to protest the use of mandatory arbitration provisions. The Pipeline Parity Project, started recently by a group of Harvard Law School students, uses social media to encourage students to decline to participate in interviews with firms that continue to require mandatory arbitration provisions. At the end of the day, the concern of the law students who run the Pipeline Parity Project is no different than one of the conclusions from the ABA Presidential Initiative study on Achieving Long-Term Careers for Women in Law. Sexual harassment is one factor that pushes women out of the profession, decreases the pool of talented women and deprives the profession of talented lawyers and talented leaders.

Resolution 300 is a first step in opening up the conversation about sexual harassment in the legal profession.

Maureen Mulligan

Maureen Mulligan is a partner at Peabody & Arnold LLP in Boston and serves as a commissioner on the ABA Commission on Women in the Profession. mmulligan@peabodyarnold.com

Entity:
Topic: