Maine legislation would end shielding of sexual harassers through forced arbitration

With roughly 56 percent of Maine employers forcing workers to sign away their right to sue through forced arbitration — which requires employees to resolve legal disputes through a private mediator — employees who experience sexual harassment in the workplace can be denied their day in court. This year, a bill being considered by the state legislature’s Labor and Housing Committee could change that.

LD 1250, sponsored by Rep. Ryan Tipping (D-Orono), would ban forced arbitration clauses related to sexual harassment from Maine employment contracts. The bill was first proposed in 2019, but was tabled by the Labor committee and carried over into the legislative session that began this month.

While forced arbitration can also prevent employees from suing their employers for wage theft or safety violations in a public court, Tipping told Beacon that having sexual harassment cases decided behind closed doors is particularly problematic. Without a public record, perpetrators who have a history of sexually harassing co-workers and other staff will likely keep getting away with it.

“In the case of sexual harassment, that’s an area where it’s good to note if there has been a pattern, either from one person or from corporate culture,” said Tipping. “That can make the difference when something appears to be in a grey area.”

A Pan Atlantic Research survey from 2019 found that 58% of female respondents said they had experienced sexual harassment in a Maine workplace. Only about a third reported the harassment they experienced.

Valerie Wicks, a Maine labor attorney with Johnson, Webbert & Young, LLP in Augusta, says that the proliferation of forced arbitration clauses, like non-disclosure agreements, are an attempt by employers to make private what should be public knowledge.

Referring to the sexual assault allegations made against Harvey Weinstein and prominent figures at Fox News, Wicks said that, for decades, other survivors were kept in the dark about the allegations “because people were sworn to secrecy, and they couldn’t talk about what happened to them.”

“What makes it harder for those who suffer from sexual harassment is that they don’t know it’s happening to other people,” said Wicks. “It can more powerful when there’s a group of people who say, ‘Hey, this is a widespread problem, not just one incident.’”

Constitutional questions and a broader approach

A similar bill passed in California last year was blocked by a federal judge in December after the California Chamber of Commerce and other coporate lobbies sued the state, arguing that such a restriction on arbitration agreements violates federal law and a 2018 U.S. Supreme Court decision. The Maine legislation could face similar hurdles.

Maine Senate President Troy Jackson (D-Allagash) introduced legislation last spring that would give Labor Department officials and the state Attorney General more power to act on behalf of exploited employees in cases of sexual harassment and other workplace violations, including wage theft, safety violations and discrimination.

The bill, which will be re-considered by lawmakers during the current emergency legislative session, would strengthen Maine’s whistleblower protections and give the attorney general the authority to essentially deputize private attorneys, granting them the power of the state to assist in pursuing corporate criminals — even when they are shielded by forced arbitration agreements.

Tipping’s and Jackson’s bills will be taken up by the Labor and Housing Committee for at least one work session within the next few weeks before the committee votes on whether to send the measures to the full House and Senate.

Photo: Harvey Weinstein arrives at the New York State Supreme Court on October 11, 2018 in New York City. The Weinstein Company used forced arbitration agreements to prevent victims of sexual harassment from taking their cases to court. | Stephanie Keith, Getty Images

Editor’s note: Rep. Ryan Tipping is the brother of Beacon director Mike Tipping.