Many employment contracts contain clauses whereby an employee agrees any and all disputes between the employee and the employer will be subject to binding arbitration before it can be taken through the court system.
 
An example of what the agreement may look like is below:
Any controversy, dispute or claim arising out of or relating to this [contract] or breach thereof shall first be settled through good faith negotiation [OR company employment program] [other]. If the dispute cannot be settled through negotiation [OR company employment program] [other], the parties agree to attempt in good faith to settle the dispute by mediation administered by [arbitration service provider].
 
Employees confronted by this agreement may have concerns about the scope of these agreements.

Do they limit or prevent employees’ rights to form class action lawsuits?

Does a victim of sexual harassment in the workplace truly maintain substantive Title VII rights as Congress intended under such a clause?

The Federal Arbitration Act of 1925 (FAA) ensures that arbitration agreements contained in contracts involving maritime transactions or interstate commerce are “valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the renovation of any contract.”

The FAA thus empowers federal courts to grant a stay of litigation for any issue referable to arbitration under a valid arbitration agreement. Indeed, the Supreme Court has sought to ensure that the FAA’s authority is not usurped, for “[i]n enacting Section 2 of the federal Act, Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.”
 
It is common for employers to draft agreements conditional on the signee’s consent to arbitrate any and all claims arising from their relationship with the employer, often impeding just for sexual assault survivors. More than half of American workers—56%—are subject to mandatory arbitration. 60 million Americans have signed such clauses.

​Should a signee refuse to surrender their Seventh Amendment right to trial by jury, she would likely be prohibited from entering the relationship at all. While employers argue these provisions are offered contingent on a consensual agreement to the terms, few employees have the luxury of turning down jobs when confronted with arbitration agreements - particularly given the pervasiveness of the practice.

To be clear, conditional arbitration clauses are not universally criticized and may provide benefits to some employees. Sometimes arbitration does make sense for both parties.

First, the relaxed rules of evidence and the greater control parties hold in the process can make it simpler, and perhaps more rewarding, for employees than litigation. While litigation requires strict compliance with formal procedures and can leave plaintiffs dissatisfied if their primary purpose was to feel heard, the opportunity for a sexual harassment victim to tell her story with less publicity and arguably more attention from the defendant can appeal to these victims.
 
This benefit has its tradeoff, though, where arbitration has almost none of the protections that fundamental fairness and due process usually require. Although an employee compelled to arbitrate may initially believe she is not giving up much in return for a relaxed setting with more opportunity to have her voice heard, the fact-finders in arbitration operate with almost none of the controls and safeguards of litigation.

There are other reasons why the arbitration process may harm employees as well.

First, employers often have arbitrators on retainer to rely on for many arbitration proceedings. It goes without saying that arbitrators on an employer’s payroll may be inclined to skew findings in the employer’s favor.
 
Second, there is less transparency to evaluate awards, so even prevailing employees may receive less in damages than they would have had they not been bound by the arbitration agreement.
 
Third, plaintiffs are prevented from joining in class actions, which is often the surest way to thrust employer misconduct into the public eye and compel employers to conform their behavior to the law. Without the ability to form class actions, individuals will likely not know the scope of employer misconduct and the extent to which the company may truly be liable, resulting in less actual change in company practices.
 
Lastly, arbitration can be incredibly costly despite the popular belief that arbitration avoids the costly expenses of litigation.
 
Thus, arbitration is not always in the best interests of an employee, which is why mandatory arbitration agreements are particularly troubling.

While seeking redress in the courtroom may pose its own challenges to an employee, the choice of forum for a particular grievance should be a consensual decision made by both parties and should not be the exclusive decision of an employer with more leverage. Not only do employers have the benefit of unequal bargaining power when entering into contractual relationships with employees, but courts today construe arbitration clauses incredibly liberally.
 
Broadly written arbitration clauses can include virtually all disputes with any connection to the initial infraction and their broad drafting can create a presumption that any dispute is subject to arbitration. Moreover, once a court has found an arbitration clause is valid, it will resolve any doubts as to the agreement’s scope in favor of arbitration.

The numbers behind sexual harassment in the workplace in the U.S. are staggering. In Fiscal Year 2020, more than 6,500 sexual harassment claims were filed with the EEOC, and it is widely known that sexual harassment in the workplace—much like sexual assault—is under-reported by employees.

The Society for Human Resource Management (SHRM) survey found that 11 percent of non-management employees said they had experienced some form of sexual harassment in the past 12 months, yet 76 percent of those said they did not report it for reasons including fear of retaliation or a belief that nothing would change.

Although most employers have a policy on sexual harassment and a complaint and grievance procedure for victims of harassment in their workplace, some employees are not aware of it, and many policies and procedures inadequately prevent harassing conduct. Employers ultimately bear high costs in defending sexual harassment actions. In 2019 alone, employers paid out $68.2 million to employees alleging sexual harassment violations.
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With the sweeping power of the #MeToo movement encouraging victims to share their stories and the consequences employers and perpetrators now experience when sexual harassment allegations come to light, the landscape of harassment law is bound to change—and hopefully for the better.

​If an employee does experience sexual harassment, there are several important factors to keep in mind.

Sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.

The U.S. Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” that interferes with one’s employment or work performance or is so frequent and severe that it creates a “hostile or offensive work environment.” Simple teasing, offhand comments, or isolated incidents may not be considered actionable harassment.

The victim, as well as the harasser, may be a woman or a man, and the victim does not have to be the opposite sex from the harasser. The harasser may be the victim’s supervisor, an agent of the employer, a supervisor in another department, a co-worker, or a non-employee vendor or customer. The victim can also include anyone affected by the offensive conduct, but regardless the harasser’s conduct must be unwelcome. The victim does not have to suffer economic injury or discharge for the harassment to be actionable.

Under Texas law, sexual harassment at work is addressed by the Texas Workforce Commission (TWC).

The law applies to private employers with 15 or more employees as well as government and labor organizations. Similar to the EEOC’s definition, the TWC holds that sexual harassment “can be unwelcome advances, requests for sexual favors, or physical touching of a sexual nature.”

Victims of sexual harassment in the workplace have several options for initiating a sexual harassment claim:

• Go through the complaint and grievance procedure maintained by his or her employer.
• File a claim with the state Texas Workforce Commission’s Civil Rights Division (TWC-CRD)
• File a claim with the federal EEOC.

Filing a claim with both agencies is unnecessary but permissible as long as the employee indicates to one of the agencies that he or she wants it cross-filed with the other agency.

There are strict deadlines in which employees must file their sexual harassment charge. To preserve a claim under state law, an employee must file with the TWC-CRD within 180 days of the alleged harassment. The deadline for filing an EEOC charge is 300 days after the last date of alleged harassment.

​Although an employee may wish to consult an attorney prior to filing a claim, it is not necessary to have an attorney file a claim with either agency, and the employee should be careful not to miss the stringent deadlines to file.
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If sexual harassment escalates to sexual assault or rape, such harassment goes beyond workplace discrimination and should be reported to the police or other law enforcement agencies as a criminal act.

Once the charge is filed, the EEOC will return a copy of the charge with a charge number, and within 10 days, the EEOC will also send a notice and a copy of the charge to the employer.

The EEOC may:

• ask both parties to take part in mediation.
• ask the employer to provide a written response to the charge before giving the charge to an investigator.
• dismiss the charge if it is untimely filed or the EEOC does not have jurisdiction.

If, at the conclusion of the EEOC’s investigation, it determines that sexual harassment did not occur, the charging party will be given a “Notice of Right to Sue,” which permits the employee to file a lawsuit.

If, however, the EEOC determines sexual harassment did occur, the agency will try to reach a voluntary settlement with the employer, and if a settlement cannot be reached, will refer the case to either the EEOC’s legal staff or the Department of Justice to determine whether the agency should file a lawsuit on the employee’s behalf.

​If the EEOC decides not to file a lawsuit, the employee is given the “Notice of Right to Sue.”

Sexual harassment claims may be brought in either state or federal court, although a case filed in state court under federal law such as Title VII may be subject to removal to federal court if the employer requests to move the case.