Chapter 17, Expanding the Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act to Protect Workers’ Rights

Forthcoming in The Federal Arbitration Act: Successes, Failures, and a Roadmap for Reform, Richard A. Bales & Jill I. Gross, editors, 2024 Cambridge University Press

University of Louisville School of Law Legal Studies Research Paper Series No. 2024-7

22 Pages Posted: 20 Jun 2023 Last revised: 3 Apr 2024

See all articles by Ariana R. Levinson

Ariana R. Levinson

University of Louisville - Louis D. Brandeis School of Law

Date Written: June 20, 2023

Abstract

This chapter argues that the prohibition on enforcement of predispute arbitration clauses in cases that relate to sexual harassment should be extended to prohibit predispute arbitration clauses in cases that relate to other types of statutory employment rights. The chapter first explains necessary background information about the FAA and the Ending Forced Arbitration Act. Next, it illuminates how enforceability of predispute arbitration in agreements covering other statutory employment claims remains problematic. Then, it explores the reasons to extend the prohibition. Just as with harassment claims, a power imbalance leads to employers mandating arbitration, and results in a system where employees are less likely to win and receive lower awards if they do win. The purpose of other statutory claims are the same as the purpose of a claim for sexual harassment. The statutes aim to alleviate systemic oppression and prohibit marginalization of classes of workers. They are intended to deter employer violations and reduce harm to individual and classes of workers. They are designed to compensate for harm to workers whose rights are violated. For all these claims informational asymmetry and a repeat player effect make the ability of a litigant to choose litigation rather than arbitration imperative. Expanding the Ending Forced Arbitration Act will conserve resources by increasing litigation of workplace claims in one forum rather than two.

Keywords: arbitration, employment, predispute waivers

JEL Classification: J71

Suggested Citation

Levinson, Ariana R., Chapter 17, Expanding the Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act to Protect Workers’ Rights (June 20, 2023). Forthcoming in The Federal Arbitration Act: Successes, Failures, and a Roadmap for Reform, Richard A. Bales & Jill I. Gross, editors, 2024 Cambridge University Press , University of Louisville School of Law Legal Studies Research Paper Series No. 2024-7, Available at SSRN: https://ssrn.com/abstract=4486077

Ariana R. Levinson (Contact Author)

University of Louisville - Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States

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