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Although this momentous legislation was passed over a year ago, the hard-fought bipartisan victory for workers’ rights is still relatively unknown. According to the Executive Office of the President, the new law “empowers survivors of sexual assault and sexual harassment by giving them a choice to go to court instead of being forced into arbitration” when bringing claims against their employer.
Arbitration is a private, non-court method of dispute resolution in which the parties meet with a third-party mediator who hears the evidence and makes a binding decision.
According to a 2018 study by the Economic Policy Institute, 50.4% of U.S. nonunion private sector employers require their employees to sign mandatory arbitration agreements, which “bar access to the courts for all types of legal claims, including employment discrimination and sexual harassment claims.” Another 3.5% of employers “adopt arbitration procedures simply by announcing that these procedures have been incorporated into the organization’s employment policies.” Employees are sometimes unaware that they are bound by these agreements until it’s time to bring a claim against their employer.
Arbitration agreements can silence “victims of abuse by forcing them into a confidential dispute forum without the right to appeal.” In a world where 38% of American women and 14% of American men report experiencing sexual harassment in the workplace, the existence of these agreements can be a hindrance to justice and safety.
Nevertheless, last year saw a significant step in favor of victims’ rights. On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. At the signing, President Biden remarked on the “broad bipartisan support and unanimity in the United States Senate” for the law. He also added that: “Employers can’t successfully compete for the best workers if their workplace practices are unsafe and unjust. Employers, it puts you on the right side of the workers.”
Limiting forced arbitration has been publicly supported by former Fox News host Gretchen Carlson, who sued then Fox News Chairman and CEO Roger Ailes, alleging sexual harassment.
On February 11, 2021, Carlson submitted testimony before the House Subcommittee in support of ending forced arbitration for sexual harassment. She stated: “I could have never imagined my story would help ignite the #metoo movement...and that I would become one of the prominent faces fighting against forced arbitration in the workplace.”
Her testimony discussed instances of employers forcing arbitration on female employees who had experienced sexual harassment in the workplace. Carlson stated: “So many of these women have shared their emotional stories of pain and humiliation with me – but mostly about how they’ve been silenced – because that’s what forced arbitration does. Turns out – silencing is the harasser’s best friend – and perpetuates the systemic problem of protecting predators and pushing women out of the workforce.”
According to Carlson, in December 2017, she joined a bipartisan team of legislators to introduce the Ending Forced Arbitration of Sexual Harassment Act. This Bill was introduced in both the House and Senate but was never amended or put to a vote.
Nearly four years later, on July 16, 2021, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 was introduced to the United States House of Representatives by Representative Bustos of Illinois. While the 2017 Bill would have invalidated prior arbitration agreements in "sex discrimination" disputes, the 2021 Bill provides "sexual harassment" and "sexual assault" claimants with the right to avoid arbitration.
The 2021 bipartisan Bill underwent only two amendments, one of which introduced a definition for the term “sexual harassment dispute,” and passed the House with a vote of 335 to 97 in February 2022. Democratic House members voted unanimously in favor of the Bill, while the Republican party was split, with 113 in support, 97 against and 2 abstentions.
On February 10, 2022, the Bill was passed in the Senate, without amendment, by a Voice Vote.
While discussing the Bill, Senator Lindsey Graham stated: “Senator Gillibrand and I and many others have been working to stop the practice of someone signing an employment contract, having a sexual harassment or assault problem in the workplace, and being forced into arbitration that is skewed for the employer against the employee for these things to be hidden.”
Senator Graham also responded to concerns that the law would be used in bad faith to take other employment law claims out of arbitration by tacking them on to harassment and assault claims. He explained: “What we are not going to do is take unrelated claims out of the arbitration contract. So if you have got an hour-and-wage dispute with the employer, you make a sexual harassment, sexual assault claim, the hour-and-wage dispute stays under arbitration unless it is related. That is the goal.”
Senator Gillibrand added that “only disputes that relate to sexual assault or harassment conduct can escape the forced arbitration clauses.” Gillibrand further stated, “When a sexual assault or sexual harassment survivor files a court case in order to seek accountability, her single case may include multiple claims. But as Senator Ernst said, if those claims on harassment or assault are dismissed, then she would go back to the arbitration process.”
Although this momentous legislation was passed over a year ago, the hard-fought bipartisan victory for workers’ rights is still relatively unknown. According to the Executive Office of the President, the new law “empowers survivors of sexual assault and sexual harassment by giving them a choice to go to court instead of being forced into arbitration” when bringing claims against their employer.
Arbitration is a private, non-court method of dispute resolution in which the parties meet with a third-party mediator who hears the evidence and makes a binding decision.
According to a 2018 study by the Economic Policy Institute, 50.4% of U.S. nonunion private sector employers require their employees to sign mandatory arbitration agreements, which “bar access to the courts for all types of legal claims, including employment discrimination and sexual harassment claims.” Another 3.5% of employers “adopt arbitration procedures simply by announcing that these procedures have been incorporated into the organization’s employment policies.” Employees are sometimes unaware that they are bound by these agreements until it’s time to bring a claim against their employer.
Arbitration agreements can silence “victims of abuse by forcing them into a confidential dispute forum without the right to appeal.” In a world where 38% of American women and 14% of American men report experiencing sexual harassment in the workplace, the existence of these agreements can be a hindrance to justice and safety.
Nevertheless, last year saw a significant step in favor of victims’ rights. On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. At the signing, President Biden remarked on the “broad bipartisan support and unanimity in the United States Senate” for the law. He also added that: “Employers can’t successfully compete for the best workers if their workplace practices are unsafe and unjust. Employers, it puts you on the right side of the workers.”
Limiting forced arbitration has been publicly supported by former Fox News host Gretchen Carlson, who sued then Fox News Chairman and CEO Roger Ailes, alleging sexual harassment.
On February 11, 2021, Carlson submitted testimony before the House Subcommittee in support of ending forced arbitration for sexual harassment. She stated: “I could have never imagined my story would help ignite the #metoo movement...and that I would become one of the prominent faces fighting against forced arbitration in the workplace.”
Her testimony discussed instances of employers forcing arbitration on female employees who had experienced sexual harassment in the workplace. Carlson stated: “So many of these women have shared their emotional stories of pain and humiliation with me – but mostly about how they’ve been silenced – because that’s what forced arbitration does. Turns out – silencing is the harasser’s best friend – and perpetuates the systemic problem of protecting predators and pushing women out of the workforce.”
According to Carlson, in December 2017, she joined a bipartisan team of legislators to introduce the Ending Forced Arbitration of Sexual Harassment Act. This Bill was introduced in both the House and Senate but was never amended or put to a vote.
Nearly four years later, on July 16, 2021, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 was introduced to the United States House of Representatives by Representative Bustos of Illinois. While the 2017 Bill would have invalidated prior arbitration agreements in "sex discrimination" disputes, the 2021 Bill provides "sexual harassment" and "sexual assault" claimants with the right to avoid arbitration.
The 2021 bipartisan Bill underwent only two amendments, one of which introduced a definition for the term “sexual harassment dispute,” and passed the House with a vote of 335 to 97 in February 2022. Democratic House members voted unanimously in favor of the Bill, while the Republican party was split, with 113 in support, 97 against and 2 abstentions.
On February 10, 2022, the Bill was passed in the Senate, without amendment, by a Voice Vote.
While discussing the Bill, Senator Lindsey Graham stated: “Senator Gillibrand and I and many others have been working to stop the practice of someone signing an employment contract, having a sexual harassment or assault problem in the workplace, and being forced into arbitration that is skewed for the employer against the employee for these things to be hidden.”
Senator Graham also responded to concerns that the law would be used in bad faith to take other employment law claims out of arbitration by tacking them on to harassment and assault claims. He explained: “What we are not going to do is take unrelated claims out of the arbitration contract. So if you have got an hour-and-wage dispute with the employer, you make a sexual harassment, sexual assault claim, the hour-and-wage dispute stays under arbitration unless it is related. That is the goal.”
Senator Gillibrand added that “only disputes that relate to sexual assault or harassment conduct can escape the forced arbitration clauses.” Gillibrand further stated, “When a sexual assault or sexual harassment survivor files a court case in order to seek accountability, her single case may include multiple claims. But as Senator Ernst said, if those claims on harassment or assault are dismissed, then she would go back to the arbitration process.”