An inspiring development is taking place for victims of sexual harassment in the workplace. Employees who are subjected to sexual harassment at work have faced an increasingly prevalent barrier to getting justice: mandatory arbitration. This has meant that for many employment disputes, the courthouse doors have been closed, requiring employees to instead seek relief through arbitration. Earlier this month, Facebook announced that they will be amending their arbitration agreements to no longer require mandatory arbitration for claims of sexual harassment in the workplace. This move comes on the heels of similar announcements earlier this year by Google, Lyft, and Uber, following a wave of protests by employees who felt that the system of requiring mandatory arbitration of all employment disputes contributed to a pervasive culture of sexual harassment.
Arbitration agreements were disfavored historically. Beginning in England in the 17th century, our legal tradition held that arbitration agreements were freely revocable, up to the point where a dispute was actually subjected to arbitration. This remained the controlling law in the United States up until 1925, when Congress passed the Federal Arbitration Act, signaling a change in how disputes would be resolved going forward. This has gradually led to an increase, and in recent years an explosion, in the prominence that arbitration has played.
Today, it has become the norm for employers to require all new hires to sign arbitration agreements at the start of their employment that bar the employees from suing the employer for any claims arising out of their employment. A 2017 survey of 1,500 employers conducted by the Economic Policy Institute produced some startling statistics showing just how widespread arbitration has become in the workplace. According to the survey, among companies with 1,000 or more employees, 65% have mandatory arbitration provisions. Looking at the employee side, among private-sector non-union employees, 56% are subject to mandatory arbitration. Extrapolated out, that covers over 60 million American workers.