Meagan Glynn
88 Geo. Wash. L. Rev. 1042
It is the unfortunate reality that sexual harassment is still a common occurrence in the American workplace. Thanks to the #MeToo and #TimesUp movements, this problem has moved to the forefront of public discourse. In an effort to eradicate this behavior, academics and legal practitioners have identified predispute, mandatory arbitration agreements and, more specifically, confidentiality provisions shielding employer misconduct and biased arbitration procedures, as obstacles to eliminating harassment in the workplace. Since the 1990s, lawmakers in Congress have recognized the problems associated with mandatory employment arbitration, but legislative proposals to limit or ban this practice have been unsuccessful. The Supreme Court has taken the opposite position, continually rendering pro-arbitration decisions that have significantly expanded the use of these agreements among employers. In light of these obstacles, the most viable source of reform is legislation, though a new approach is needed. Rather than attempting to eliminate arbitration agreements, this Note proposes an amendment to the Federal Arbitration Act providing that the employee has the sole discretion to determine the scope of confidentiality in arbitration over sexual harassment claims. Additionally, the employee may exercise this right only after the misconduct has occurred. By placing this decision solely within the employee’s hands, the employer faces a realistic possibility that any misconduct and unfair arbitration procedures will be exposed to the public, likely resulting in significant reputational harm. The threat of such harm will ideally incentivize employers to change harmful employment practices and controversial arbitration policies, ultimately leading to both a harassment-free workplace and a more equitable arbitral forum.
