Mandatory Arbitration and Sexual Harassment Claims: #MeToo- and Time’s Up-Inspired Action Against the Federal Arbitration Act
By Kathleen McCullough
The rise of the #MeToo movement and Time’s Up campaign has brought the issue of sexual harassment into the national spotlight. Equal Employment Opportunity Commission filings for sexual harassment claims have increased 13 percent since the start of the #MeToo movement, and a little over a year since its creation on January 1, 2018, the Time’s Up Legal Defense Fund has received 4139 requests for representation in sexual harassment claims. However, the U.S. Supreme Court has interpreted the Federal Arbitration Act to enforce mandatory arbitration clauses for employment claims, including sexual harassment claims—an interpretation that prohibits employees from pursuing litigation in court. Recently, federal and state legislation that prohibit mandatory arbitration of sexual harassment claims have been proposed and enacted. However, the Federal Arbitration Act generally preempts state actions, and current federal actions are limited in scope.
This Note examines the Federal Arbitration Act’s enactment and evolution to its current “super-statute” status that preempts state actions to limit or prohibit mandatory arbitration. This Note then explores recent federal, state, and corporate responses to combat mandatory arbitration of sexual harassment claims. Finally, this Note argues that federal action is necessary because state action attacking mandatory arbitration, whether directly or covertly, is likely preempted by federal law. This Note also encourages alternative options to limit the impact of mandatory arbitration, such as empowering attorneys general to pursue sexual harassment claims, encouraging companies to waive mandatory arbitration, and prohibiting nondisclosure agreements.