#MeToo in Practice: How Confidential Is Confidential Arbitration?

Westlaw Today

Tamara Bock, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, authored an article in Westlaw Today, titled “#MeToo in Practice: How Confidential Is Confidential Arbitration?”

Following is an excerpt (see below to download the full article in PDF format):

The #Metoo movement has thrust an otherwise wonky procedural issue — mandatory arbitration clauses in employment agreements — into the spotlight as employee advocates argue that employers use such clauses to shield allegations of sexual harassment and discrimination from the public.

Pressure on employers has been significant enough that some have recently stopped not only requiring workers to arbitrate sexual harassment and discrimination claims, but they also have stopped requiring employees to arbitrate any employment-related claims whatsoever.

This sweeping mistrust of mandatory arbitration in harassment and discrimination cases, however, may have an unintended effect of undermining efforts by both employee advocates and employers — both of whom share a common interest in eliminating unwanted workplace behavior — to eradicate harassment, discrimination and retaliation in the workplace.

Contrary to the seemingly mainstream narrative, confidentiality in arbitration is nuanced. It therefore behooves employers to understand those nuances to avoid being lulled into a belief that arbitration allegations and proceedings are black boxes.

Instead, pre-dispute arbitration agreements can provide both employer and employee with some choice over whether and how to publicize their positions — a choice that mostly does not exist for defendants in court and that rarely exists for plaintiffs in light of rules that generally allow a plaintiff to file claims anonymously only under exceptional circumstances.

In contemplating how best to manage complaints of harassment, employers should not overlook the demand for confidentiality from employees. Since 2015, the number of plaintiffs filing anonymous discrimination and harassment cases has steadily increased — even doubling from 2017 to 2018 — across federal courts according to a 2019 Bloomberg Law survey.1

In light of the growing desire by plaintiffs actually alleging discrimination to maintain their own confidentiality, the notion that mandatory arbitration "silences" employees therefore deserves careful examination.