How the Supreme Court's Decision on Arbitration Is a Blow to the #MeToo Movement

In a 5-4 ruling earlier this week, the Supreme Court decided that companies can fire employees who refuse to give up their civil right to publicly participate in class-action lawsuits, effectively giving employers the right to force employees into arbitration.

In an unusual move, justice Ruth Bader Ginsberg chose to read her dissent from the bench — and it was fierce. She called the ruling "egregiously wrong" saying that it would lead to the "under-enforcement of federal and state statutes designed to advance the well-being of vulnerable workers.” She encouraged Congress to step in and update federal laws to right the wrong.

Quartz writer Leah Fessler explained the repercussions of the ruling succinctly:

"What RBG didn’t explicitly state, but surely implied, is that by enabling companies to force arbitration, the Supreme Court is oppressing and silencing untold numbers of employees who experience workplace discrimination, especially sexual harassment."

Journalist and #MeToo activist Gretchen Carlson connected the dots in her 2017 TEDWomen talk about how arbitration agreements are used to keep women silent about what they endured and to protect the men who harassed them.

Carlson: "How many of you out there know whether or not you have a forced arbitration clause in your employment contract? Not a lot of hands. And if you don't know, you should, and here's why. TIME Magazine calls it ... 'The teeny tiny little print in contracts that keeps sexual harassment claims unheard.' 

Here's what it is. 

Forced arbitration takes away your 7th Amendment right to an open jury process. It's secret. You don't get the same witnesses or depositions. In many cases, the company picks the arbitrator for you. There are no appeals, and only 20 percent of the time does the employee win. But again, it's secret, so nobody ever knows what happened to you."

An estimated 60 million Americans are subject to forced arbitration clauses in their employment contracts. “Forced arbitration is a harasser’s best friend,” Carlson says. “It allows harassers to stay in their jobs, even as victims are pushed out or fired. It silences other victims who may have stepped forward if they’d known."

I reached out to Gretchen today to ask her how those of us who want to shine a light on sexual harassers in the workplace can take action in light of the Supreme Court decision. 

She told me three things.  

On the Federal Level: People can show their support for the Ending Forced Arbitration of Sexual Harassment Act of 2017, a bipartisan bill proposed by Senators Lindsey Graham (R-South Carolina) and Kirsten Gillibrand (D-New York). Call your senators and representatives and tell them you're disappointed with the Supreme Court's ruling and that you, like RBG, hope that Congress will take action to end forced arbitration.

On the State Level: Many states are debating arbitration rules right now. Find out what is being debated in your state and support bills in the legislature regarding arbitration.

On Social Media: Speak up about harassment and let others know about this issue.

Finally, she encourages supporters to join the Be Fierce movement. Her Be Fierce book includes more ideas for stopping harassment and getting your power back. 

- Pat

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