The End of Sexual-Harassment Arbitration?

Bipartisan legislation seeks to void forced arbitration agreements.
By: | December 11, 2017 • 3 min read

Does the “Ending Forced Arbitration of Sexual Harassment Act of 2017have a better chance of becoming law than past attempts to restrict arbitration agreements? Especially given the timing, some believe the answer is an unequivocal yes.

As you may have heard, Rep. Cheri Bustos (D-Ill.) and Sen. Kirsten Gillibrand (D-N.Y.) introduced bipartisan legislation last Wednesday aimed at voiding forced arbitration agreements and enabling “survivors of sexual harassment or discrimination to seek justice.” Senate co-sponsors include Lindsey Graham (R-S.C.), Lisa Murkowski (R-Ark.), Kamala Harris (D-Calif.). House co-sponsors include Walter Jones (R-N.C.), Elise Stefanik (R-N.Y.), and Pramila Jayapal (D-Wash.)

In announcing the bill, Bustos said …

“If we truly want to end sexual harassment in the workplace, we need to eliminate the institutionalized protections that have allowed this unacceptable behavior to continue for too long. Whether it’s on factory floors, in office buildings or retail businesses, 60 million Americans have signed away their right to seek real justice and most don’t realize it until they try to get help. Our legislation is very straightforward and simple—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. 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.”

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“No worker should have to put up with such an unfair system,” said Gillibrand.

On hand for the announcement was former Fox News’ host Gretchen Carlson, who sued her former employer and its then CEO Roger Ailes over harassment. (Ailes passed away in May.)

Carlson, who received a $20 million settlement in the case, described forced arbitration as a harasser’s best friend. “It keeps harassment complaints and settlements secret. It allows harassers to stay in their jobs, even as victims are pushed out or fired. It silences other victims who may have stepped forward if they’d known. It’s time we as a nation—together—in bipartisan fashion give a voice back to victims.”

Lawrence Lorber, senior counsel with Seyfarth Shaw in Washington, predicts that the bill, as its currently worded, will likely meet some opposition. Its chances, he adds, would be greatly improved were the wording more targeted to sexual assault and harassment.

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“I think the language of the bill goes further than what they intended,” Lorber says. ”What it does is not only preclude arbitration from being applied to sexual-harassment matters, but [from] all contracts of employment.”

Lorber points out that there already exists a model for addressing the legislation’s shortcomings. Ironically, he says, it’s The Franken Amendment, which was part of the Defense Appropriations Act and prevents defense contractors from requiring arbitration in instances arising out of sexual assault and harassment. (Sen. Al Franken, D-Minn., who sponsored the amendment, announced last week he would soon be giving up his Senate seat as a result of accusations of sexual misconduct.)

Thanks to The Franken Amendment, Lorber says, there’s already a law that exists for addressing this issue, though “for a much more limited universe.”

Lorber says he wouldn’t be surprised to see a bill addressing this issue become law as soon as early next year.

David Shadovitz is editor of HRE. He is also co-chair of the HR Tech Conference and chair of the Health & Benefits Leadership Conference. He can be reached at hrelett[email protected]

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