Bill Passes Senate to End Forced Arbitration of Sexual Assault Cases

On February 10th, 2022, the U.S. Senate approved a bill to end forced arbitration of sexual assault cases. Specifically, the legislation bans clauses in employment contracts that force victims of sexual assault and harassment to settle cases in arbitration. In effect, this practice commonly shields alleged perpetrators from public scrutiny. Markedly the bill has received broad, bipartisan support. Earlier, a company was ordered to pay $5 million in a nationwide sexual discrimination lawsuit.

Background of the Bill

In brief, the bill comes after a series of high-profile allegations of sexual harassment against male executives in the media and entertainment industry over the last several years. In particular, former Fox News anchor Gretchen Carlson brought a case that gained national attention. Carlson accused former Fox CEO Roger Ailes of sexual harassment five years ago. However, she discovered the forced arbitration clause in her contract at that time. Arbitration clauses in employment contracts are meant to:

• bind the parties to an agreement to settle cases outside of the court system, and
• shield accused employers from the public eye.

Eventually, Carlson pursued litigation herself and won a settlement. Concurrently, Senator Kirstin Gillibrand, D-N.Y., and Senator Lindsey Graham, R-S.C., introduced the bill to end forced arbitration in sexual assault cases five years ago. Furthermore, lawmakers worked with business leaders to garner public support for the bill.

Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

Accordingly, the bill is named the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. Previously, on February 7th, 2022, it had passed with a bipartisan vote in the U.S. House of Representatives. Basically, the bill gives individuals a choice to resolve cases of sexual harassment or assault either in court or through arbitration. However, employers may not force individuals into arbitration only. Furthermore, the bill is retroactive. Therefore, its passage renders any existing forced arbitration clauses in ongoing cases invalid. This makes it easier for any survivors to litigate against their employers. Subsequently, the bill reached the Senate and won approval by a voice vote in the chamber, a sign of overwhelming support for the measure.

Bipartisan Support for the Bill

Undoubtedly, the bill creates a benchmark for transparency and accountability for all employers regarding proper workplace conduct. Additionally, the bill acts as an effective deterrent. Indeed, the accused may no longer rely on the degree of anonymity that arbitration clauses allow. Senator Gillibrand cited an estimated 60 million Americans are subject to these clauses when she called the bill, “one of the most significant workplace reforms in history.” Meanwhile, Senator Graham felt corporations are likely to “up their game” by adopting new practices regarding sexual assault and harassment. Presently, the bill will head to President Joseph R. Biden’s desk for his signature.