Employment Law Daily Bipartisan bill would invalidate predispute agreements to arbitrate a ‘sex discrimination dispute’
Monday, December 11, 2017

Bipartisan bill would invalidate predispute agreements to arbitrate a ‘sex discrimination dispute’

By Pamela Wolf, J.D.

As women continue to come forward with allegations of sexual harassment by powerful men, including by members of the U.S. Congress, a bipartisan group of five Democratic and two Republican senators have introduced legislation that would void forced arbitration agreements that prevent sexual harassment survivors in the workplace from “getting the justice they deserve,” as sponsors put it. The move comes on the heels of proposed legislation to give sexual harassment survivors in Congress a better path to justice.

The Ending Forced Arbitration of Sexual Harassment Act of 2017, S. 2203, was introduced on December 6 by Senators Kirsten Gillibrand (D-N.Y.) and Lindsey Graham (R-S.C.). The Senators were joined by Gretchen Carlson, who gained national attention when she left the Fox News Channel after enduring what she said were years of sexual harassment. Perpetrators of sexual harassment have used forced arbitration to institutionalize protections for sexual harassers and prevent survivors from discussing their cases and taking them to trial, as the sponsors of S. 2203 explained.

An estimated 60 million Americans are subject to forced arbitration clauses in their employment contracts. The Ending Forced Arbitration of Sexual Harassment Act would void forced arbitration agreements that require arbitration of sexual harassment and discrimination claims and let survivors of sexual harassment or discrimination seek justice, discuss their cases publicly, and eliminate institutional protection for harassers, according to its sponsors.

Predispute arbitration agreements invalid. Specifically, S. 2203 provides that “no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a sex discrimination dispute,” which means “a dispute between an employer and employee arising out of conduct that would form the basis of a claim based on sex under Title VII.” If enacted, the arbitration ban would apply to Title VII-covered employers.

Exception. The Ending Forced Arbitration of Sexual Harassment Act would not apply, however, to any arbitration provision in a collective bargaining agreement, provided that the arbitration provision does not have the effect of waiving employee rights to seek judicial enforcement of a right arising under a provision of the U.S. Constitution, a State constitution, a federal or state statute, or a public policy arising therefrom.

Sexual harassment in Congress. It is abundantly clear that the sexual harassment problem is not confined to privat-sector employment. There have been many recent media reports of alleged sexual harassment perpetrated by members of the U.S. Congress. Many federal lawmakers have recognized that sexual harassment survivors in Congress, like their counterparts in the private-sector workforce, face a troubling lack of transparency and significant institutional barriers in seeking justice (See Lawmakers get serious about sexual harassment in Congress, November 15, 2017). Last month, lawmakers introduced the ME TOO Congress Act (S. 2159; H.R. 4396) in an effort to remedy these problems.

“To expect change without pushing for change is unrealistic,” Senator Graham said of the Ending Forced Arbitration of Sexual Harassment Act. “This legislation takes off the table the ability of employers to mandate arbitration before claims even arise. Mandatory arbitration employment contracts put the employee at a severe disadvantage. I do not oppose arbitration—if the parties willingly consent to the process. Ensuring that sexual harassment and assault claims cannot be negotiated away before they occur will create incentives to change the workplace environment, making it less hostile and more respectful.”

“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,” said Senator Gillibrand. “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.”

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