Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021
Floor Speech
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Mr. NADLER. Madam Speaker, pursuant to House Resolution 900, I call up the bill (H.R. 4445) to amend title 9 of the United States Code with respect to arbitration of disputes involving sexual assault and sexual harassment, and ask for its immediate consideration in the House.
The Clerk read the title of the bill.
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Mr. NADLER. 4445.
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Mr. NADLER. Madam Speaker, I yield myself 3 minutes.
Madam Speaker, H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, would restore access to justice for survivors of sexual assault or sexual harassment who are forced to settle their disputes against their harassers and abusers in a private system of arbitration that is often stacked against them.
Arbitration was originally developed as an alternative to the court system for parties of relatively equal bargaining power to enter into voluntarily. In recent decades, however, forced arbitration clauses have become ubiquitous in our lives, largely in the form of take-it-or- leave-it contracts between very large companies and individual consumers. As a result, these clauses have rendered our court system, in which plaintiffs have far stronger protections, inaccessible to far too many.
Nowhere is that trend more apparent or problematic than in the workplace. It is projected that, by 2024, 80 percent of private-sector workers will be forced to sign an arbitration clause when accepting employment. And consider that, over the past 5 years, employers prevailed over their employees in 98 percent of these arbitration cases. But these numbers cannot capture the true human toll of forced arbitration.
Last November, the Judiciary Committee heard powerful testimony from four survivors of sexual assault and sexual harassment about their harrowing experiences and the deep wounds they continue to carry with them to this day. It was a hearing none of us will forget, and we appreciate these brave women coming forward and sharing their stories.
Each of these women was subject to horrific treatment by a person with power over their lives. Then, when they sought to hold their assailants accountable in court, they were forced to relive the trauma of their harassment and assault to find that their only recourse was a secretive arbitration process that was stacked against them.
Forced arbitration clauses, buried deep in the fine print of the paperwork required as a condition of employment, have bound workers to a system in which they are nearly guaranteed to fail, foreclosed the possibility of ever having their day in court, and in almost every case taken away their right even to discuss their experience.
The company gets to pick the judge and the jury, truncate the discovery process, choose the law applied, and prevent all appeals. When the company wins, it can request that the victim pay its attorney's fees, and it can ensure that misconduct never sees the light of day.
H.R. 4445 removes these barriers to justice for survivors of sexual assault or sexual harassment by giving them a real choice of whether to go to court or to arbitrate their claim.
In doing so, this legislation ends this unjust and, frankly, repulsive system in which American companies are better off retaliating against victims of sexual assault than taking responsibility and holding perpetrators responsible for their horrific actions.
Madam Speaker, I include in the Record a letter to Members of Congress dated February 4, 2022, and a letter to House leadership dated February 7, 2022, both from organizations in support of H.R. 4445. February 4, 2022. Re Pass the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (HR. 4445).
Dear Members of Congress: On behalf of the undersigned organizations, we write in support of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445), a bill that would provide important new opportunities for individuals who experience sexual harassment and assault to seek justice without being forced into closed-door and secretive forced arbitration proceedings, where the deck is too often stacked against them.
Today, individuals are routinely forced to sign an arbitration clause to resolve disputes as a condition of obtaining a job or purchasing a good or service, often through language buried in fine print. Many individuals who sign such documents have no idea they have waived the ability to enforce their rights in court. Arbitrators are often chosen and paid by companies. There is no public record of the proceedings or the outcome, and rarely an opportunity to appeal the arbitrator's decision. Many who come forward with reports of sexual harassment or sexual assault, cannot afford legal counsel. The arbitration clause may force them to bear some of the significant costs of the arbitration. The resolution of their disputes may fail to make them whole for the harm they have suffered.
The lack of public accountability enabled by forced arbitration has played a harmful role in allowing sexual harassment and assault to persist in the shadows. In the four years since #MeToo went viral, thousands of individuals, disproportionately women, have come forward to share their experiences--many several years after the fact--and to demand justice. When women and all those who have experienced assault and harassment share their stories, it gives others the courage to come forward as well. But when women who report such conduct are forced into arbitration, that secretive process with no public accountability further silences survivors, and employers and companies can continue to employ and protect serial sexual harassers.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act is an important step towards restoring power to survivors of sexual assault and sexual harassment by ensuring they will not be forced into arbitration. It is admittedly a partial solution, as no individual should be forced to waive their ability to fully enforce their rights to be free from other forms of unlawful harassment, discrimination, and exploitation, whether as workers, as consumers, as patients, or as students. We are therefore hopeful that as a complement to this bill, Congress will quickly take up and pass the FAIR Act (H.R. 963) and Restoring Justice for Workers Act (H.R. 4841), which would ensure that companies can no longer circumvent the legal system by forcing individuals into arbitration. But the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act represents an important partial restoration of individuals' rights to seek accountability and justice. Accordingly, we urge you to support this legislation. If you have any questions, please contact Emily Martin (emartin@nwlc.org) at the National Women's Law Center. Sincerely,
National Women's Law Center, National Employment Law Project, National Employment Lawyers Association. ____ February 7, 2022.
Dear Speaker Pelosi and Minority Leader McCarthy: We, the undersigned groups, support passage of H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. This bipartisan bill would empower survivors of sexual assault and sexual harassment by allowing survivors of sexual harassment and sexual assault to file a case in court rather than be forced into arbitration. Survivors of sexual assault and sexual harassment would be able to hold perpetrators and institutions accountable outside of closed- door arbitration proceedings and shine light on systemic issues of wrongdoing. According to actor Eliza Dushku, one of several witnesses who testified under the protection of congressional subpoenas, at a powerful hearing last November on H.R. 4445, forced arbitration ``protects the harassers, the abusers, the corporations, and it isolates the victims . . . [it] creates a culture of silencing.''
Many of the undersigned groups oppose the use of forced arbitration against all consumers and workers. Predispute binding arbitration clauses and class action waivers, together known as forced arbitration clauses, are typically buried in ``take-it-or-leave it'' agreements that waive an individual's fundamental rights to seek accountability in court when they are hurt or when their rights are violated. These clauses deprive people of the opportunity to hold wrongdoers accountable, no matter how widespread or egregious the misconduct may be; and they also allow all types of abuse, discrimination, and fraud to go unchecked.
In the privatized system of forced arbitration, there is no judge or jury, and the right to appeal is severely limited. Arbitrators do not have to follow the law or precedent. And proceedings take place behind a veil of secrecy that insulates perpetrators from public accountability. That is why thousands of Google workers around the world walked off the job in late 2018 to protest, among other things, Google's use of forced arbitration clauses to hide mistreatment of workers who alleged harassment and discrimination against high-level executives. Also in 2018, in a rare gesture of bipartisanship, all 56 attorneys general (in every state, the District of Columbia, and territories) urged Congress to immediately enact legislation that would ban forced arbitration for sexual harassment claims. The letter said, ``Victims of such serious misconduct should not be constrained to pursue relief from decision makers who are not trained as judges, are not qualified to act as courts of law and are not positioned to ensure that such victims are accorded both procedural and substantive due process.''
The Senate companion bill, which passed the Senate Judiciary Committee on a voice vote, has ten Republican co- sponsors, and support continues to grow. Conservative commentator and women's rights advocate Gretchen Carlson, who has been a vocal opponent of the way forced arbitration clauses are used to silence victims of sexual harassment, recently said that passing H.R. 4445 ``will be a victory for American workers and I am incredibly optimistic this is going to be the law of the land.''
H.R. 4445 has widespread, bipartisan support inside and outside the walls of Congress. We urge all Members of the House to vote for this important legislation. Your staff should feel free to reach out to Remington A. Gregg should you have any questions. Sincerely,
American Association for Justice, American Civil Liberties Union, Alliance for Justice, American Family Voices, Americans for Financial Reform, Center for Disability Rights, Center for Economic Justice, Center for Justice & Democracy, Citizen Works, Consumer Action.
Consumer Federation of America, Consumer Reports, Consumer Watchdog, Consumers for Auto Reliability and Safety, Center for Progressive Reform, Disability Rights Education & Defense Fund, Earthjustice, Economic Policy Institute, Essential Information, FORGE, Inc.
Googlers for Ending Forced Arbitration, Impact Fund, Justice for Migrant Women, The Leadership Conference on Civil and Human Rights, Maryland Consumer Rights Coalition, Mazzoni Center, National Association of Consumer Advocates, National Black Justice Coalition, National Consumer Law Center (on behalf of its low income clients), National Consumers League.
National Disability Rights Network (NORN), National Employment Law Project, National Organization for Women, People's Parity Project, Public Citizen, Public Good Law Center, Public Law Center, SC Appleseed Legal Justice Center, Service Employees International Union (SEIU), Texas Watch.
The Army of Survivors, URGE: Unite for Reproductive & Gender Equity, Women Employed, Woodstock Institute, Workplace Fairness, YWCA USA.
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Mr. NADLER. I thank my colleagues, Representatives Bustos, Griffith, Jayapal, and Buck, for their leadership on this issue. I urge my colleagues to support this bipartisan legislation, and I reserve the balance of my time.
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Mr. NADLER. Madam Speaker, I yield 4 minutes to the gentlewoman from Illinois (Mrs. Bustos), the sponsor of this bill.
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Mr. NADLER. Madam Speaker, I yield 2 minutes to the gentlewoman from Washington (Ms. Jayapal).
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Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the distinguished gentleman from New York (Mr. Jeffries).
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Mr. NADLER. Madam Speaker, I yield 1 minute to the gentleman from Georgia (Mr. Johnson).
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Mr. NADLER. Madam Speaker, I yield 3 minutes to the gentlewoman from Texas (Ms. Jackson Lee), a distinguished member of the Judiciary Committee.
Ms. JACKSON LEE. Madam Speaker, I thank the distinguished chairman for his leadership, and I thank my distinguished friend from Illinois, Congresswoman Bustos for her constant determination.
It is wonderful that H.R. 4445 is restoring freedom and justice to women. It is a bipartisan piece of legislation that will not allow any pre-dispute arbitration agreement or pre-dispute joint action waiver to be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to a sexual assault dispute or sexual harassment dispute.
I am glad to hear friends on the other side, as this is a bipartisan bill, acknowledge the fact that this is an absolute injustice; an injustice that befalls a certain segment of the population, and that is women.
One of the cases that is most stark is the one of Stefani Bambace. Many witnesses came before us in the Judiciary Committee. Witness after witness gave us horror stories of isolation and fear and the absolute inability, because of the fine print, to do anything about it.
Stefani Bambace alleged that she worked in a sexually charged and hostile work environment, including being subjected to sexually explicit language from her employer, sexual advances and groping. Let me say that again. Touching in her space from her employer, sexual advances and groping and explicit images. How can you work as a professional or anyone? Think of the levels of work that women are in; from domestic to as high a level as scientists and CEOs. But yet, they are subjected to this kind of behavior.
According to Ms. Bambace's petition, she complained to human resources to no avail about the harassment. And guess what her relief was? Guess what empathy was shown? Guess what comfort and reforming the system was? It was her being fired. That is right. She was fired. How many stories of women are there, that are yet not told, who were fired?
And so this agreement of which my colleague has worked on, and we are pleased in the Judiciary Committee to be part of moving this legislation, this will end these arbitration agreements that are snuck into a packet of materials that you sign.
It is imperative we pass it, but more importantly Madam Speaker, it is imperative that it is passed in the Senate because it is bipartisan, but it is signed by the President and becomes law.
I thank Ms. Bambace and all of the witnesses that came before us. They sacrifice, they suffered, but yet today, hopefully, will be an announcement, a pronouncement of freedom and justice for women who have struggled with this all of the time.
H.R. 4445 is a relief that is a long time in coming, and it should move away from blind, silent, quiet agreements that no one knows what it is. Freedom and justice for women in the workforce today.
Madam Speaker, I rise to speak in strong support of H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.
This bill will amend Title 9 of the United States Code, empowering survivors of sexual assault and harassment by restoring their access to justice and public accountability under the law.
By ending forced arbitration in lawsuits involving these claims, survivors of sexual assault or sexual harassment are empowered with making the decision on whether they wish to pursue legal action against their assailants which often includes going to court to arbitrate their claims.
It is estimated that 60 million Americans have signed away their right to seek real justice and most don't realize it until they try to get help.
H.R. 4445 will not allow any pre-dispute arbitration agreement or predispute joint-action waiver to be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to a sexual assault dispute or a sexual harassment dispute.
In the Judiciary markup which brought this bill to the floor, survivors of sexual harassment and sexual assault shared their stories with the committee about their devastating experiences and the subsequent arbitration process they were forced to endure as a condition of their employment.
The #MeToo movement chipped away at the culture of secrecy that protects predators and silences survivors.
Ending mandatory arbitration has the power to ensure that survivors of sexual harassment and discrimination in the workplace have their voices heard.
For example, in Bambace v. Berry Y&V Fabricators, LLC, Stefani Bambace alleged that she worked in a sexually charged and hostile work environment, including ``being subjected to sexually explicit images from her employer, sexual advances, and groping.''
According to her petition, she complained to Human Resources about the harassment and was fired three weeks later.
She filed a lawsuit alleging violations of Chapter 21 of the Texas Labor Code.
Like more than half of non-unionized American workers, Bambace was subject to an employer promulgated arbitration agreement.
These arbitration agreements are often snuck into a packet of materials employers give employees on their first day of employment to sign and they are rarely negotiated or even discussed.
In a well-reasoned opinion in Bambace, the Court held that the arbitration agreement, which required the Plaintiff to litigate sexual harassment claims in confidential and binding arbitration, violated public policy, injured the public good, and was therefore void and unenforceable.
Critically, the Court further rejected Defendant's argument that the arbitrator, not the Court, should determine whether the sexual harassment claims were subject to arbitration.
Fortunately, in the Bambace case Harris County Judge Lauren Reeder understood that cases such as these should be determined by a court, rather than an arbitrator irrespective of whether the agreement purports to delegate such determinations to an arbitrator.
This is just one story out of millions where forced arbitration agreements attempt, and usually succeed, to silence sexual assault and sexual harassment victims.
These forced ``agreements'' strip survivors of the right to decide how to pursue accountability of their predators.
Instead, these survivors' stories are heard in secret, behind closed doors, and do little to nothing to stop the systematic abuse from occurring again.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 will ensure that these survivors will have their voices heard in a court of law if they choose to do so.
No survivor of sexual harassment or sexual assault should be forced into silence, especially by a piece of paper buried within their employment agreement.
Forced arbitration allows companies to hide and shield sexual predators and keep employees from knowing that their other colleagues could be victims of the same person.
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.
More than 56% of Americans are subject to these mandatory arbitration agreements.
These victims deserve the right to choose to go to court, it should not be in the hands of their employer.
A 2011 Cornell University study found that employees are less likely to win arbitration cases.
These corporations embrace arbitration because it is a cheaper and faster way to settle disputes and can cut down frivolous lawsuits.
Corporations do not want to face juries because they know citizens will punish them for their wrongdoing, so they sneak arbitration language into their take-it-or-leave-it contracts.
Forced arbitration is a sexual harasser's best friend, it is an issue of fundamental human rights.
Eliza Dushku, an actress, testified that she had been fired from the CBS prime-time drama ``Bull'' after she asked her co-star, Michael Weatherly, a producer on the show, to stop harassing her.
She said he had made rape jokes about her and had told her in front of dozens of cast and crew members that he wanted to be in a threesome with her.
She said she had later learned that the contract she signed with CBS included a forced arbitration clause.
After a mediation, the company agreed to a confidential settlement that would pay Ms. Dushku $9.5 million.
Situations such as Ms. Dushku's aim to sweep sexual harassment and assault cases under the rug.
Silencing these victims is exactly what forced arbitration agreements are meant to do and I believe we should no longer tolerate this behavior.
This is an excellent and common-sense bill that will ensure victims are not silenced by forced arbitration agreements any longer.
Although we cannot bring justice and a voice for those who have already settled their cases to their arbitration agreements, we can ensure that future victims will be heard and not suppressed in their truth.
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Mr. NADLER. Madam Speaker, I yield 2 minutes to the gentleman from Rhode Island (Mr. Cicilline), a distinguished member of the Committee on the Judiciary.
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Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the gentlewoman from Pennsylvania (Ms. Scanlon), another distinguished member of the Committee on the Judiciary.
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Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the gentleman from Maryland (Mr. Raskin), another distinguished member of the Committee on the Judiciary.
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Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the gentlewoman from Texas (Ms. Garcia), another distinguished member of the Committee on the Judiciary.
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Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the gentlewoman from North Carolina (Ms. Ross), another distinguished member of the Committee on the Judiciary.
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Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the distinguished gentlewoman from Connecticut (Ms. DeLauro).
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Mr. NADLER. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, removes barriers to justice for survivors of sexual assault or sexual harassment by giving them a real choice of whether to go to court or to arbitrate their claim after the dispute has arisen.
Mr. Jordan is right. Many such victims, if given the choice, will choose to go to court. Why shouldn't they? In arbitration, they lose 98 percent of the cases. The employer wins 98 percent of the cases in arbitration. Why? Well, for one thing, the employer picks the arbitrator, and the arbitrator is paid. So, naturally, the arbitrator wants to rule in such a way that he or she is likely to get hired again.
But 98 percent of the cases brought by women who have been sexually harassed who are in forced arbitration are lost by them. That is why this bill is necessary.
If we want to give women who have been sexually harassed a fair chance at justice, we must pass this bill. If we want to give women who have been sexually harassed a fair chance at winning against their employer who did the sexual harassment or allowed the sexual harassment, we must pass this bill.
That is why this critical measure is supported by a broad coalition of public interest organizations, including the National Alliance to End Sexual Violence, the National Center on Domestic and Sexual Violence, the National Coalition Against Domestic Violence, the National Partnership for Women and Families, RAINN, and many others.
Not one single group that deals with sexual violence opposes this bill. Only employer organizations oppose this bill because it stacks the deck in their favor.
Madam Speaker, I want to thank my colleagues, Representatives Bustos, Griffith, Jayapal, and Buck, for their leadership on this issue, and I urge my colleagues to support this bipartisan legislation.
Madam Speaker, I yield back the balance of my time.
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Mr. NADLER. Madam Speaker, I claim the time in opposition to the amendment, although I am not opposed.
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Mr. NADLER. Madam Speaker, I yield myself 45 seconds.
Madam Speaker, I rise in support of the amendment offered by the distinguished gentleman from Colorado (Mr. Buck), the ranking member of the Subcommittee on Antitrust, Commercial, and Administrative Law.
This amendment simply clarifies that H.R. 4445 does not amend current law outside of the Federal Arbitration Act. It reflects the bipartisan input of several of my colleagues in the House and Senate, including the bill's sponsor, Congresswoman Bustos.
Importantly, this amendment would protect the rights of survivors of sexual harassment by ensuring that they have a choice of litigating or arbitrating any case relating to the conduct that is alleged to constitute sexual harassment under applicable law. It does so by making clear that anything related to sexual harassment or assault as currently defined by law is covered by this bill.
This would include retaliation or any other misconduct that gives rise to the underlying claim alleging a violation of these laws and reflects an important compromise struck to protect these cases.
Madam Speaker, I urge my colleagues to support this amendment, and I reserve the balance of my time.
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Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the gentlewoman from Illinois (Mrs. Bustos), the sponsor of the bill.
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Mr. NADLER. Madam Speaker, I yield 1 minute to the gentleman from California (Mr. Correa).
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Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the distinguished gentlewoman from California (Ms. Speier).
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Mr. NADLER. Madam Speaker, in closing, I thank Mr. Buck for offering this helpful amendment.
I thank Ms. Speier, and I thank all the people who have been so helpful on this bill.
Madam Speaker, I yield back the balance of my time.
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