Congress approves bill to end forced arbitration in sexual assault cases

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WASHINGTON, D.C. (NPR) — The Senate approved legislation banning the practice of using clauses in employment contracts that force victims of sexual assault and harassment to pursue their cases in forced arbitration, which shields accused perpetrators.

Sen. Kirstin Gillibrand, D-N.Y., and Sen. Lindsey Graham, R-S.C., introduced the bill five years ago and lawmakers negotiated with business leaders to get support for the bill. In a sign of the overwhelming support for the measure, it was approved by voice vote in the chamber.

Sen. Lindsey Graham, R-S.C., and Sen. Kirsten Gillibrand, D- N.Y., stand together at a press conference in Washington D.C.
Sen. Lindsey Graham, R-S.C., and Sen. Kirsten Gillibrand, D- N.Y., pushed legislation that would invalidate forced arbitration and bring workplace sexual harassment and discrimination claims out of secret settlement processes. [Drew Angerer | Getty Images]
The bill, called the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, was passed with a large bipartisan vote by the House of Representatives on Monday and heads to President Biden’s desk for his signature.

The bill gives individuals a choice between going to court or going to arbitration to resolve allegations in cases related to sexual harassment or assault. The measure is also retroactive — invalidating any existing forced arbitration clauses in ongoing cases that could make it difficult for any survivors to litigate cases against their employers.

Gillibrand said this bill represents “one of the most significant workplace reforms in history.” She said estimates indicate about 60 million Americans are subject to these clauses.

“No more arbitration in the basement about misconduct up top,” Graham said. He predicted that corporate America will “up their game” and adopt new practices as a result of the bill.

Gretchen Carlson, the former Fox News anchor who accused Roger Ailes, the then CEO of the news outlet, of sexual harassment more than five years ago, learned the clause forcing arbitration was in her contract. She pursued litigation against Ailes personally and won a settlement, but has been part of the effort to press Congress to change the law. Her story was adapted in the film Bombshell and preceded a string of other high profile allegations in subsequent years from women against powerful male bosses in the media and entertainment industry.

Speaking at a press conference on Capitol Hill after the bill’s passage Carlson said the bill will have a dual affect, it will “help companies from getting on the right side of history, that’s for sure.”

And she said it would also stop bad behavior because the “bad actors will know that women’s voices will be heard when they speak up about what’s really happening at work.”

Graham warned that the bill was limited to allegations of sexual assault and harassment and “we do not intend to take unrelated claims out of the contracts.” The Republican said the intent was to make it “easier to get justice without gaming the system.”

Senate Majority Leader Chuck Schumer, D-N.Y., called the bill ” a momentous reform bill, and one that’s painfully overdue.”

He also stressed that “it will not only ensure that those who’ve suffered sexual harassment or assault have the option to go to court if they choose, it will also be retroactive: people locked into these clauses right now will benefit just as much as new employees will in the future.”

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