Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

Floor Speech

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Mr. SCOTT of Virginia. Madam Speaker, I will vote ``yes'' on H.R. 4445, Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. However, l have reservations that certain provisions in the bill lack clarity regarding key issues.

Employers have increasingly relied on forced arbitration clauses to circumvent workers' right to due process. Currently, over 60 million American workers are locked out of the courtroom due to these coercive arrangements that compel them to go through a process that is rigged against them. Forced arbitration undermines workers' recourse for a wide array of employment law violations--not just sexual harassment and sexual assault; this includes wage theft and other employment discrimination issues. With Chairman Nadler, I introduced the Restoring Justice for Workers Act, H.R. 4841, a more comprehensive approach to protect workers' access to the courts and their right to collective action no matter their workplace claim.

Although H.R. 4445 is an important step forward by ensuring that certain individuals who experience ``sexual assault'' and ``sexual harassment'' are not forced to arbitrate their cases based on a pre- dispute arbitration agreement, I have concerns that the legislation does not go far enough to offer such protections to other vulnerable individuals who need fair access to the courts to vindicate their rights. In the employment context, for example, the bill's singular focus on sexual harassment involving unwelcome sexual advances, propositions, and sexual attention, fails to account for the other, harmful, and common, forms of sex-based harassment that occurs in the workplace. This kind of harassment is not sexual in nature but is motivated by a sex-based animus or hostility. It can involve offensive and derogatory comments about women working in male-dominated industries, physically intimidating conduct directed at men who fail to conform to stereotypical gender norms, as well as posting demeaning and graphic texts and images to make women or men feel uncomfortable in the workplace. These are just a few examples of the non-sexual, sex-based harassment that have been recognized by the Supreme Court and the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that enforces employment civil rights laws. Thus, given the breadth and complexity of sex-based harassment, and the negative impact it can have on individuals who experience it, I have concerns about limiting this bill to a certain type of sexual harassment.

I have similar concerns about the narrow scope of individuals who are included under the bill's definition of ``sexual harassment dispute.'' The bill states that ``the term `sexual harassment dispute' means a dispute relating to . . . conduct directed at an individual or group of individuals.'' The phrase ``directed at'' suggests that the individual or group of individuals must be the target of the harassing conduct to be included in the bill's jurisdiction. In the employment context, however, the EEOC and federal courts have recognized that a harassment victim does not have to be the target of the harassment to have a viable harassment case. A salient example of this scenario is a female employee who works in an environment where male co-workers frequently use gender-derogatory language to describe or insult women, even though the language is not ``directed at'' the female employee. In such a scenario, the female employee could assert that she experienced sexual harassment because even though she was not the direct target of her male co-workers' gender-derogatory language, she worked in a sexually offensive and hostile environment. Therefore, using language in H.R. 4445 that seems to narrow the scope of harassment victims to only those who are the direct target of harassing conduct undercuts this important principle.

I am encouraged that a group of bipartisan Members have introduced an amendment that recognizes some of the limitations of H.R. 4445's definition of ``sexual harassment dispute.'' This amendment ``[c]larifies that, for the purposes of the bill, sexual harassment dispute is defined as a dispute relating to conduct that allegedly constitutes sexual harassment under applicable Federal, Tribal, or State sexual harassment laws.'' By embracing sexual harassment jurisprudence, which encompasses a broader array of harassing conduct than is currently included in the text of the bill, the amendment would allow more sexual harassment victims to avoid forced arbitration of their cases based on a pre-dispute arbitration agreement.

Unfortunately, this bipartisan amendment does not address one of the most problematic issues with H.R. 4445--the lack of clarity regarding the coverage of intersectional and related issues that arise in sexual harassment cases. For example, in the workplace, minority women frequently experience sexual harassment concurrent with harassment based on their race or national origin. Additionally, a harassment victim may experience other negative employment actions related to the sexual harassment such as a demotion, unfavorable job transfer, reduction in pay, or other retaliatory conduct. The language in H.R. 4445 fails to specifically state whether there is coverage of these cases, i.e., whether intersectional cases and negative employment action cases related to the sexual harassment would go to court as one case or whether these cases would have to be bifurcated such that the sexual harassment case would go to court, but the intersectional and related case would be forced into arbitration. Given that bifurcation of these cases will only lead to unnecessary expense and an administrative burden for both parties, the best reading of the language in the bill that refers to ``a case . . . [that] relates to a sexual harassment dispute'' is that it was meant to encompass these scenarios. Any other reading of the text regarding these issues would lead to an impractical result, but regrettably the bill, as drafted, does not foreclose that possibility.

The final issue I want to address is the legislation's failure to include a notice requirement directing entities, such as employers, to inform the recipients of their pre-dispute agreements that they have certain protections related to forced arbitration. Typically, employers include language about an arbitration agreement in employment applications, contracts, and/or handbooks that is inconspicuous and difficult for a lay person to understand. For workers to know their rights, employers should be required to provide written, conspicuous notice of the protections in this bill, drafted in plain language the workers can understand, wherever the employer mentions a pre-dispute agreement to arbitrate, and prior to the employer's commencement of arbitration proceedings. Had these simple notice requirements been included in this legislation, it would have helped to ensure that ``sexual assault'' and ``sexual harassment'' victims received the full measure of protections under this bill.

Ms. JACKSON LEE. Madam Speaker, as a senior member of the House and the Committee on Homeland Security, and as Chair of the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, I rise in strong support of H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.

Madam Speaker, H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, is bipartisan and bicameral legislation that empowers survivors of sexual assault and sexual harassment by giving them a choice to go to court instead of being forced into arbitration.

This legislation would amend the Federal Arbitration Act for disputes involving sexual assault and sexual harassment in order to stop employers and businesses from forcing employees and customers out of the court system and into arbitration.

It would ensure that predispute arbitration clauses and waivers of the right to bring joint actions in cases of sexual assault or sexual harassment would not be valid or enforceable for cases that are filed under Federal, Tribal, or State law.

Under current law, many employment and other contracts require binding arbitration for a wide range of matters before a dispute arises, which denies survivors the ability to decide whether to pursue their claim with the procedural protections provided by courts, and silences victims of abuse by forcing them into a confidential dispute forum without the right to appeal.

Madam Speaker, more than 60 million Americans are subject to mandatory arbitration clauses in the workplace, often without realizing it until they come forward to bring a claim against their employer.

The Report of the Co-Chairs of the U.S. Equal Employment Opportunity Commission's Select Task Force on the Study of Harassment in the Workplace notes that between 50-75 percent of women have faced some form of unwanted or unwelcome sexual harassment in the workplace.

Additionally, contracts for services may include mandatory arbitration clauses in the fine print that shield companies and businesses from being held publicly accountable for the harm caused.

I support this necessary legislation because it advances efforts to prevent and address sexual harassment and sexual assault, strengthen rights, protect victims, and promote access to justice.

Madam Speaker, I strongly support this legislation and urge all Members to join me in voting for H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.

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