Forced Arbitration? Not for sexual harassment claims, Hawley says

  

JEFFERSON CITY, Mo. – A number of judicial reform issues continue to take some of the top priority spots among the General Assembly, particularly Republicans, during this year’s legislative session, but it seems that the state’s chief law enforcement official doesn’t share some of the same views.

The issue of arbitration has moved to the front seat this year, with legislation steadily progressing in both the House and the Senate. In particular, HB 1512, sponsored by Rep. Kevin Corlew, was on the fast track to perfection earlier this month.

Corlew’s bill, in simple terms, would seek to give authority to the arbitrators to make the decision as to whether an arbitration agreement between an employer and employee is enforceable. Opponents of the bill say it will make forced arbitration easier, that it is a denial of their constitutional rights.

The bill is one of several “pro-business” reform measures being pushed by a several Republicans, particularly Gov. Eric Greitens, with a number of business groups supporting the legislation. Two of the biggest names among supporters are the Missouri Chamber of Commerce and Hallmark.

Hallmark’s enforcement of their “Hallmark Dispute Resolution Program,” which put employees into arbitration for any employment issues, was heavily debated by the courts in a lawsuit more than a decade ago, and in 2008, the Western District of the Missouri Court of Appeals ruled in favor of the plaintiff, stating that a company cannot force arbitration upon its employees.

“The idea that an employer can create any legal contract it dares to create (based on a condition of at-will employment) cannot be sustained upon reflection,” the court wrote.

The simplest way to explain the court’s ruling is that forced arbitration denies the employees’ right to a trial by jury, one of the oldest constitutional rights.

But since then, Hallmark and others have pushed for the legislation, which, in the words of Rep. Jay Barnes, would make the constitutional right guaranteed by Article I, section 14 of the Missouri Constitution disappear.

That bill was on its way to passage in the Missouri House last week before it was derailed, literally knocked off of its tracks by a single signature. That signature belonged to Attorney General Josh Hawley and had been affixed to a letter to Congressional leaders, along with the signatures of every other Attorney General, expressing their opposition of forced arbitration agreements in the context of sexual harassment claims.

The issue of arbitration and sexual harassment claims has been one mentioned throughout the legislative process, perhaps best summarized when Rep. Gina Mitten spoke up during a committee hearing, echoing the words of Gretchen Carlson, the former Fox News host who said she had been harassed by former CEO Roger Ailes.

“Arbitration agreements are a sexual harasser’s dream.”

But Corlew, the bill’s sponsor, has stated that the bill has been appearing for years now and that it was simply about “providing an effective alternative to dispute resolution.” His argument is that by allowing for more arbitrated agreements, it would free up court dockets to handle other cases.

While speaking at a news conference on Tuesday afternoon, Hawley avoided giving a specific answer about whether he supported a blanket ban on arbitration, stating that in the matter of the current arbitration legislation, he hoped the legislators would carve out an exemption for sexual harassment claims, retaliation, and protecting victims of sex trafficking.

“I have publicly called on the legislature to add an amendment along these lines,” he said.

However, carving out that exemption and passing the legislation would still mean that arbitration laws would strengthen and still apply in cases of race, age, religious or other types of discrimination.

But Hawley said that as far as taking any position on the bill, he said he would need to review the legislation.

In that same press conference, however, Hawley announced a partnership with the Women’s Foundation to conduct a “comprehensive review of existing discrimination and harassment policies across state government.”

“There is no place for harassment or discrimination anywhere—especially in our state government, where our elected leaders are expected to be examples,” Hawley said. “Harassment and discrimination undermine our government’s ability to serve the people of Missouri. Agencies should be held to the highest standards in preventing and remedying these issues.”

He stated that in the review of the policies, he did not see room for arbitration policies in the state department’s policies in terms of sexual harassment.

“If everybody agrees to enter into arbitration, that’s fine, but forced arbitration for claims of harassment or retaliation, particularly forced or secret arbitration is, I think, just really bad policy,” he said.

“I’m not necessarily advocating that we do not have exceptions for other things, but as it relates to sexual harassment discrimination or retaliation, my message is this: that those absolutely should be carved out from forced arbitration,” he said. “I think that is vitally important, the other policy the legislature can and will address.”

As for HB 1512, Rep. Barnes wrote: 

For the sake of every Missourian who cares about the Constitution and an impartial system of justice, the ideas in House Bill 1512 should die a permanent death.”

The bill currently sits on the House informal calendar, awaiting another opportunity to be brought forward for perfection.

Benjamin Peters is a reporter for the Missouri Times and Missouri Times Magazine, and also produces the #MoLeg Podcast. He joined the Missouri Times in 2016 after working as a sports editor and TV news producer in mid-Missouri. Benjamin is a graduate of Missouri State University in Springfield. To contact Benjamin, email benjamin@themissouritimes.com or follow him on Twitter @BenjaminDPeters.