January 2, 2018, New York, NY

The Women’s Bar Association of the State of New York (“WBASNY”) strongly supports Governor Andrew Cuomo’s legislation that seeks to end forced arbitration for victims of sexual harassment in the workplace. Specifically, the legislation seeks to end the practice of employers forcing employees to enter contracts that limit employees’ ability to seek justice for sexual harassment by limiting their relief to arbitration. The employee must sign the contract with the clause included if they want to be employed by that employer.

Under forced arbitration, an arbitrator from a private arbitration firm decides whether the employee has been a victim of sexual harassment, rather than a jury guided by a public judge. Usually, that arbitration firm has already been chosen by the business and is named in the contract. The business is likely to be a “repeat customer” of that firm, raising a potential for institutional bias. In addition to the potential for inherent bias, overturning a wrong determination is nearly impossible. The proceedings and the results are kept secret which lends itself to the continuation of sexual harassment in the workplace as the “bad actors” and their actions are not exposed.

This legislation addresses a problem that negatively and disproportionately affects women, as women are more likely to be a victims of sexual harassment in the workplace than men. Governor Cuomo’s legislation would allow victims to seek justice in the forums of their choice which includes a right to a jury trial. This legislation promotes fairness and protection for the victims of sexual harassment in the workplace and it acts as a deterrent which, at all times, is paramount.