Until recently, these mandatory arbitration clauses also covered cases of sexual harassment or sexual abuse. However, in March 2022, US President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. While employers may continue to include mandatory arbitration clauses in contracts, the new law means victims of sexual harassment and sexual abuse are no longer prohibited from taking their cases to court despite such provisions. The law was widely welcomed as an important step towards greater access to justice for victims of sexual abuse and harassment.
In addition to the ‘mandatory’ perspective, I have also seen mediation being presented as an alternative to dealing with a formal complaint in the workplace. For instance, in situations where the individuals concerned still need to continue working together or when the behaviour is not considered a ‘fireable’ offence, some would argue that disciplinary complaint procedures are needlessly divisive and that attempting to address conflict through more informal means, such as a mediated conversation, is preferable. For this reason, many workplace grievance policies often ‘strongly encourage’ employees to (only) pursue informal action or specifically require them to first go through informal steps before being allowed to submit a formal complaint.
However, (only) pursuing informal action in cases of sexual harassment may (unintentionally) be perceived as minimising the conduct and the harm that results from the behaviour, would allow offenders to escape more formalised measures of accountability, thus perpetuating the impunity gap for gender-based violence, and risks allowing power imbalances to remain unchallenged. Additionally, like mandatory arbitration clauses, by disregarding victims’ choice about how they wish to pursue a matter or by not providing safe and appropriate options of seeking formal disciplinary action, these approaches can also compound existing trauma.
Finally, most workplace mediation practices focus on the ‘resolution of conflict’ and, in doing so, seek to come to a ‘negotiated agreement’ between parties, whereby often both parties are expected to ‘compromise’ on the terms of this agreement. In my opinion, this is by nature a harmful perspective for cases of sexual harassment. Most importantly, when considering the ordinary understanding of a workplace conflict – i.e., a (strong) disagreement between individuals that occurs in the workplace, in relation to work or between an employer and (an) employee(s) – there is something quite perverse about classifying sexual harassment or abuse as a mere disagreement. It minimises the harm that has occurred and completely disregards the power imbalances and gendered inequalities that underpin the behaviour. Further, classifying sexual harassment as a disagreement, the solution to which is a negotiated compromise between parties, risks assigning (part of) the blame for the existence of this so-called ‘disagreement’ to victims. In this way, there is a real risk that traditional workplace mediation approaches by their nature or set up contribute to secondary victimisation, which we know can be equally or more damaging than the incident itself.
In other words, my hesitation about the use of restorative justice in cases of sexual violence stemmed from the risks I saw that the workplace mediation practices I am familiar with, with their emphasis on the resolution of conflict through finding middle ground, and as a mandatory or alternative option, can be potentially harmful to victims/survivors of sexual harassment and abuse.