Bill gives victims back their voices
Ending forced arbitration would break the silence of sexual harassment cases
SAN FRANCISCO – A bipartisan group of lawmakers introduced legislation that would eliminate forced arbitration clauses in employment agreements that advocates say silence women in sexual harassment and gender discrimination cases.
Rep. Cheri Bustos, D-Ill., and Sens. Kirsten Gillibrand, DN.Y., and Kamala Harris, DCalif., are sponsoring the legislation, Ending Forced Arbitration of Sexual Harassment Act. GOP co-sponsors are Sen. Lindsey Graham, R-S.C., and Reps. Walter Jones, R-N.C., and Elise Stefanik, R-N.Y.
Forced arbitration allows sexual harassment and assault to fester in the workplace by keeping victims from discussing cases publicly or taking them to court, said former Fox News anchor Gretchen Carlson, on Capitol Hill Wednesday for a press conference announcing the legislation.
“Sexual harassment is not partisan because women from all walks of life and politics are targeted,” Carlson said. “Let’s get on the right side of history with both parties. Because when somebody decides to sexually harass you, they don’t ask you if you are a Republican or a Democrat or an Independent, like I am, first. They just do it.”
Arbitration clauses, which are often a condition of employment, affect an estimated 60 million Americans. Voiding these clauses in sexual harassment and discrimination cases would aid victims by pulling back the veil of secrecy on bad behavior in the workplace, the bill’s backers say.
More than half of American workers — 56% — are subject to mandatory arbitration, according to the Economic Policy Institute’s survey of non-union private-sector employers.
Graham encouraged business leaders and the business community to support the bill. “The reason we need to get rid of these clauses is that it’s good for America,” he said.
The U.S. Chamber of Commerce said it would review the legislation.
“The Chamber will work with anyone to make sure appropriate steps are taken to combat sexual harassment,” it said in an emailed statement.
The role that forced arbitration plays in silencing women has become a hotly debated topic with the national #MeToo outcry over sexual harassment.
Secret settlements, whether through forced arbitration or non-disclosure agreements, kept women from coming forward and allowed alleged perpetrators such as Harvey Weinstein to continue to harass and assault women, Carlson says. On Wednesday, Time magazine named “The Silence Breakers” — women who went public with sexual harassment and assault charges — as the 2017 Person of the Year.
“If you have been subjected to sexual harassment or discrimination in the workplace, we think you, not the employer, should have the right to choose to go to court,” Bustos said. “While there are a lot of good companies that take sexual harassment seriously and work to prevent it, this legislation will help root out bad actors by preventing them from sweeping this problem under the rug.”
Former Uber software engineer Susan Fowler, who complained of sexual harassment at the ride-hailing company, has also spoken out against ar- bitration clauses in employment agreements.
In a blog post in May, Fowler called on companies to end forced arbitration because it deprives employees of their constitutional rights “and it forces employees who have been treated unlawfully to keep silent about what they have experienced.”
Arbitration has been embraced by corporations because it’s a cheaper and faster way to settle disputes and can cut down on frivolous lawsuits. A 2011 Cornell University study found that employees are less likely to win arbitration cases.
“When a company has a forced arbitration policy, it means that if a worker is sexually harassed or sexually assaulted in the workplace, they are not allowed to go to court over it; instead, they have to go into a secret meeting with their employer and try to work out some kind of deal that really only protects the predator,” Gillibrand said. “They are forbidden from talking about what happened, and then they are expected to keep doing their job as if nothing happened to them. No worker should have to put up with such an unfair system.”
Carlson has played a pivotal role in raising awareness about the role of non-disclosure agreements and arbitration clauses in silencing women, says San Francisco civil rights and employment lawyer Cliff Palefsky, a longtime critic of forced arbitration.
Carlson accused Roger Ailes, the late chairman of Fox News, of sabotaging her career after she rejected his advances. An arbitration clause prevented her from suing the company so she sued Ailes instead. Her $20 million settlement with Fox News’ parent company contributed to the ouster of Ailes.
Today, Carlson is fighting on another front. She recently published Be Fierce: Stop Harassment and Take Your Power Back.
“Forced arbitration is a sexual harasser’s best friend,” Carlson said. “Enough is enough.”
The time she spent lobbying Capitol Hill to end forced arbitration agreements in sexual harassment cases has generated rare bipartisan support, giving the legislation a shot at passing the House and the Senate, Palefsky said.
“She understands the impact in a very direct way and she understands the importance of it,” he said. “Women should not be relegated to secret tribunals. We know the environment that creates and there’s no reason for this to be a partisan issue. It’s an issue of fundamental human rights.”
Congress is wrestling with incidents of sexual harassment, too. Last month, the Senate passed a resolution requiring sexual harassment training for senators and staff. In the House, lawmakers introduced a bipartisan bill last month that would overhaul the congressional complaint process and provide better protections for accusers. Other lawmakers are looking to reform the secret process lawmakers have used to settle numerous workplace harassment and discrimination claims.
A half-dozen women in the Senate called for Sen. Al Franken to resign as a sixth woman came forward to charge the Minnesota Democrat with making improper advances. Franken said he would have an announcement Thursday.
“We work in an institution where we are also saying: No more,” Bustos said.
“When somebody decides to sexually harass you, they don’t ask you if you are a Republican or a Democrat or an Independent, like I am, first. They just do it.” Gretchen Carlson Former Fox News anchor