Arbitration is an alternative to civil litigation where both parties agree to forgo the option of suing in court. Many employment agreements contain provisions under which the employer and employee agree to resolve any future disputes in arbitration. Arbitration has advantages for both employers and employees over full-blown civil litigation, including speed, privacy, cost, and flexibility.
In recent years, #MeToo activists have objected to the resolution of workplace sexual harassment claims in arbitration, claiming that arbitration disadvantages employees and “silences” victims. In truth, arbitration affords claimants the same opportunity to pursue monetary damages as trying their cases in court. Employees who have agreed to arbitrate claims against their employer may still report wrongful conduct to the police and to government agencies, and they can cooperate fully in government investigations of such conduct.
Although arbitration proceedings are conducted in a private setting, arbitration in no way prevents claimants from going public with their stories, if they so choose. There is no principled basis for legislative bodies to carve out a narrow exception for sexual harassment claims to the federal policy in favor of arbitration.