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The Danger of Forced Arbitration When Used to Silence Sexual Assault Victims

Published on Jun 25, 2019 at 3:29 pm in Title IX.

In Aug. 2017, a 45-year-old teacher, Aimee Palmitessa, was arrested and charged with 12 felonies related to having sex with a minor. She taught at Brentwood School in Los Angeles, California, a $44,000 per year private academy. She was known in the school to flirt with male students and make inappropriate jokes. The specific relationship she was arrested for started in 2016 with student John Doe. She first sexually assaulted him in 2017 when he was 17 and the relationship escalated from there. Other than being a minor, he was also unable to consent because the teacher-student relationship contains a power dynamic. When the school found out, she was placed on administrative leave, but the head of the school, Michael Riera, minimized allegations to parents at the school.

John Doe sued the school in Aug. 2018 in Los Angeles County Superior Court for failing to protect him by ignoring the warning signs of her behavior long before he was in her classroom. The 33-page lawsuit included the details of her grooming and assaulting Doe. But the lawsuit quickly went away from public eye from the loophole of forced arbitration.

What is Forced Arbitration?

Brentwood School has a paragraph in its enrollment agreement that any “controversy or claim” related to the school must be dealt with in arbitration. Many highly ranked private schools in the U.S. are assumed to have similar policies to protect themselves from any scrutiny. Arbitration allows them to privately deal with cases of sexual or physical abuse, bullying, and discrimination, and in the cases of some Christian schools, discrimination against LGBTQ students.

Arbitration is a secretive process that brings a case to a disinterested third party with no jury and little oversight. It also limits options for obtaining information, unlike in civil court where Doe’s lawyers would have been able to get more information to prove the school knew more about her interactions with Doe and other students. A Cornell study found that arbitration generally favors the employer, which is why Brentwood School—and others—chose to put it in the enrollment agreement.

Typically in these cases, both sides are given a list of at least five arbitrators and each side can strike two names to narrow the choice down. This is the only control the victim receives in this process. The arbitrator then makes a list of the information that can be requested from either side. Like the case above, this limits the victim from finding information to prove prior knowledge or a history of abuse. Unlike public court, minimal information from the case becomes public record. Usually decisions are final. Schools might argue this process is to protect the student’s privacy in a case, but that privacy comes with a major side effect that’s impossible to ignore: It protects the institution as well.

The Danger of Forced Arbitration

The problem with forced arbitration is that it can enable sexual harassment and silence victims. In cases where arbitration is used, the company doesn’t have to make the information public. This protects the person who was blamed by keeping victims from speaking to the public or learning about other victims’ cases. Victims are granted limited, if any, compensation. Keeping the case out of the public eye also safeguards the company from backlash from the public about their decisions. This process protects the company, school, or abuser, and usually works to silence sexual assault victims.

In the case of John Doe and Brentwood School, forced arbitration protected his abuser. He was unable to get information that proved she had a history of sexually abusing students, and that her peers and higher ups neglected to do anything about her behavior. In Nov. 2018, a judge sided with Brentwood School, silencing Doe. He is left with physical and emotional scars from her abuse. Even though he is in college now, he still struggles to socialize, make friends, and trust.

The good news is that some companies are reforming so cases of sexual assault and sexual harassment do not automatically go to arbitration. The victim can choose if they want to handle the case privately or in public courts. This gives the victim the power in the situation, which is important, as forced arbitration stripped them of any power they could have in a case.

If you’ve suffered from sexual assault and want to pursue legal action, contact us.