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

Floor Speech

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Mr. JORDAN. Madam Speaker, I want to thank the gentlewoman from Minnesota for her great work here in the Congress and for yielding time.

Madam Speaker, I rise in opposition to this legislation. We all know that sexual assault and harassment are as wrong as wrong can be. Victims of sexual harassment and sexual assault must have their claims heard. They must never be silenced or intimidated into silence. But the outrage we rightly feel on behalf of these victims does not mean we should rush to pass a bill that could leave many of them worse off.

In the Judiciary Committee, we heard from experts about why this bill's approach is misguided. For example, some of the bill's supporters repeatedly claim that arbitration is what keeps victims from publicizing their experiences or going to authorities and law enforcement. But arbitration is not automatically secret or otherwise confidential.

Agreeing to resolve a case outside of court is different from agreeing to silence. Arbitration does not prevent anyone from speaking out. Anyone who has agreed to arbitrate may still go to authorities and law enforcement to report the wrongdoing, and well they should.

There is an important distinction between agreeing to arbitrate and agreeing to silence. This distinction matters because much of the push for this legislation comes from concerns about secrecy rather than from an honest assessment of whether arbitration advances justice. Yet despite the focus on secrecy, the text of this bill never actually addresses confidentiality or nondisclosure agreements.

Another key talking point for supporters of this legislation is that it gives plaintiffs more choice over how to resolve disputes, but that is not how arbitration works.

Giving one party the unilateral ability to cancel a two-way agreement to arbitrate will functionally take the option to arbitrate completely off the table. For one thing, contracts will be far less likely to include an option to arbitrate in the first place now. For another, we know that if parties can't agree in advance to arbitrate, then they are unlikely to agree to arbitrate after there has been a dispute. As a result, the plaintiff may never get to arbitration.

More often than not, victims do not have deep pockets or the potential for large-sum litigation settlements like those that are available to high-profile figures. This bill will cause these women to lose the potential benefits of arbitration.

Lawsuits are normally long and costly, and companies often have enough money to vigorously defend these claims. These lawsuits are an ordeal for victims who, in a normal case, must undergo discovery, give depositions, and may even need to give public testimony. The rules of litigation may make it much harder for victims to tell their stories in their own words and get the relief they deserve.

Arbitration can be a welcomed alternative to the rigors and trauma of litigation, but Democrats want to pretend that this bill won't limit access to arbitration for victims of assault.

In reality, the bill is more about empowering the trial bar than actual victims. As drafted, the text gives trial lawyers every incentive to craft complaints and allege sexual harassment or assault to get whole cases out of arbitration and into court.

Ultimately, this bill will empower the plaintiffs' bar in ways that some of its supporters may not intend but that Democrats and trial lawyers certainly do.

For years, Democrats have pursued plaintiffs' lawyers' wish to gut arbitration agreements for all kinds of different claims. If Democrats and the trial bar had their way, everyone from consumers of financial services, to civil rights plaintiffs, to those with antitrust claims and others would be forced into court even if they would rather agree to arbitrate at the outset.

Don't be fooled. What is best for plaintiffs' lawyers is not always what is best for plaintiffs.

Let's ensure whatever legislative vehicle we use actually makes things better. I am very concerned about this legislation and how it will actually play out for victims in practice and for the adverse consequences it could have.

Madam Speaker, for those reasons, I would urge that we oppose the bill.

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Mr. JORDAN. Madam Speaker, on that I demand the yeas and nays.

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