Mandatory Arbitration Limits Impact of #MeToo Movement
The #MeToo campaign serves as a reminder to sexual assault survivors that they are not alone. The movement has had a significant impact on social media, spreading virally in October 2017 as a two-word hashtag demonstrating the widespread prevalence of sexual assault and harassment, especially in the workplace. It followed soon after the sexual misconduct allegations against entertainment mogul Harvey Weinstein.
Many new employees sign documents limiting their ability to pursue litigation against the companies they work for when they start a new position. The forms state the only route they’re able to take to problem solve issues is by closed arbitration through a private dispute resolution company picked by the employer. They explicitly ban class action lawsuits.
Over 60 million employed Americans are currently required to waive their rights to pursue legal action in courts, according to the Economic Policy Institute. Even if they allege sexual harassment or age discrimination, they’re only able to pursue private, individual arbitration.
Employers argue that arbitration is inexpensive and more effective than public courts. But, in private arbitration, the company picks the providers who supply the arbitrators, and, behind closed doors, those arbitrators decide whether the company violated the law. That doesn’t seem very effective to those who choose to do something about a hostile work environment. Mandatory arbitration limits the impact their decision to break the silence has on society at large.
“It’s about time,” Ruth Bader Ginsburg said of the traction #MeToo has gained as of late. “For so long, women were silent, thinking there was nothing you could do about it, but now the law is on the side of women, or men, who encounter harassment, and that’s a good thing…When I see women appearing every place in numbers, I’m less worried about a backlash than I might have been 20 years ago.”
In an interview, Ginsburg disclosed her own experiences with sexism and inappropriate behavior. She recounted two specific instances in which she was put in a difficult position, including an incident that occurred with a chemistry professor while she was attending Cornell University. Ginsburg said the professor offered to provide her with a practice exam after she went to him for help in preparing to take an important test. “The next day, the test is the practice exam, and I knew exactly what he wanted in return,” Ginsburg said. “I went to his office and said, ‘How dare you?’ And that was the end of that.”
She also told of a time in which a male judge was hesitant to hire her as a law clerk because she was a woman with a child. The law professor at Columbia University who recommended Ginsburg for the position at the court offered the judge, a Columbia alumnus who usually hired Columbia students, a male student if Ginsburg didn’t work out as planned. “That was the carrot. The stick was, [the professor told the judge] ‘If you don’t give her a chance, I will never recommend another Columbia student for you.’”
The 84-year-old Supreme Court Judge said of her experiences, and the importance of the impact the #MeToo movement is making, “Every woman of my vintage knows what sexual harassment is, although we didn’t have a name for it.”