- The Washington Times - Thursday, February 10, 2022

Victims of sexual assault and harassment soon will no longer be forced to rely on an independent arbiter to settle their cases, following the Senate’s passage of a bill to end such practices on Thursday.

The Senate approved by voice vote a bill that would end forced arbitration in sexual misconduct cases, just two days after it had passed the House, 335-97. All opposing votes came from Republicans.

“This is one of the most significant workplace reforms in American history,” said Sen. Kirsten Gillibrand, New York Democrat. “No longer will survivors of sexual assault or harassment in the workplace come forward to be told that they’re legally forbidden to sue their employer because somewhere buried in their employment contracts was this forced arbitration clause.”

Mrs. Gillibrand co-sponsored the legislation with Sen. Lindsey Graham, South Carolina Republican.

Rep. Cheri Bustos, Illinois Democrat, sponsored the bill in the House.

The legislation now heads to President Biden’s desk to be signed into law.

Mr. Graham said that, while he thinks there is a case to be made about the benefits of arbitration in businesses, victims of sexual misconduct should have the option to pursue legal action in court.

“I don’t mind arbitration between businesses,” Mr. Graham said. “There’s a place for arbitration. It’s cheaper. You can get it done quicker. But most people have no idea what they’re doing when they sign an employment contract. The idea that you’re going to sign away your day in court for when you’re abused in the workplace, those days are over.”

The bill will be one of the most sweeping workplace reforms, which comes four years after the #MeToo movement shed light on several cases of sexual misconduct that were often swept under the rug.

Under the Ending Forced Arbitration of Sexual Harassment Act, employers would be barred from requiring workers to settle sexual harassment and assault claims via closed-door arbitration rather than in open court.

The legislation would allow victims in the workplace to file lawsuits with their own legal representation, if they choose to do so.

Currently, roughly 60 million workers across the country are subject to forced arbitration.

The practice is not limited to sexual misconduct cases, as it is also used to dispute claims of unfair pay and discrimination. The bill, however, would only be limited to cases of sexual misconduct.

Former Fox News host Gretchen Carlson, a vocal advocate of the bill, thanked lawmakers on Capitol Hill for its passage.

“This is a historic day, not only for our workers, but for our country. Both of our parties coming together to say enough is enough,” Ms. Carlson said at a press conference.

Ms. Carlson has been active in getting Congress to act on passing the legislation for years, citing her personal experience: Arbitration blocked her from suing the late Fox News CEO Roger Ailes for sexual harassment.

Ms. Carlson later sued Mr. Ailes under New Jersey civil rights law, which was followed by other Fox News women coming forward with similar allegations against the executive.

Critics of the bill argue that the benefits of arbitration will be lost through the new restrictions.

Rep. Jim Jordan, Ohio Republican, defended arbitration as a cheaper, quicker alternative to litigation, which could limit victims from directly talking about their experiences.

“These lawsuits are an ordeal for victims, who in a normal case, must undergo discovery, get depositions made, and may even need to give public testimony,” Mr. Jordan said on the House floor. “The rules of litigation may make it much harder for victims to tell their stories in their own words and get the relief they deserve. Arbitration can be a welcomed alternative to the rigors and trauma of litigation.”

Mr. Jordan is the ranking member of the House Judiciary Committee.

Sen. Ben Cardin, Maryland Democrat, credited the bill’s straightforwardness as to why it was able to move so swiftly through both chambers of Congress.

“I think it’s a clear area where it’s been abused and that it is showing that we can bring out a strong bipartisan support for a clear message against the abuse that’s been used in arbitration law,” Mr. Cardin told The Washington Times.

Ms. Carlson said she would like to see the next steps on ending arbitration in other areas, as well as examining nondisclosure agreements in company policies.

• Mica Soellner can be reached at msoellner@washingtontimes.com.

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