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

Floor Speech

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Mrs. FISCHBACH. Madam Speaker, I yield myself such time as I may consume, and I thank my colleague from New York for yielding me the customary 30 minutes.

We are here today to discuss H.R. 4445. Sexual harassment and sexual assault are despicable actions. Victims of sexual harassment and assault must have their claims heard, and they should not be silenced or intimidated into silence.

The Judiciary Committee heard important testimony from victims of sexual harassment and assault. It took real courage for those victims to tell their stories to us. What those women, and many more women around the country, have had to face is terrible, and sexual harassment should not be tolerated.

H.R. 4445 would not make victims better off. And no matter how well- intentioned the bill may be, it raises real policy concerns.

The committee received testimony from experts explaining the bill's flaws. For example, this bill's supporters seem to assume that all arbitration is secret, that arbitration automatically keeps victims from going to the authorities or publicizing their experiences.

That is not accurate. Arbitration is not intrinsically secret or otherwise confidential. Put simply, agreeing to resolve a case outside of court is different than agreeing to silence.

That distinction matters today because much of the argument for this bill comes from concerns about secrecy rather than whether justice can be served in the arbitration context.

Despite that emphasis, H.R. 4445 does not actually address confidentiality or nondisclosure agreements. Even if this bill is enacted, it is still possible that separate contract provisions could be used to impose confidentiality or keep details about an employer under wraps.

But in all likelihood, this bill would effectively end most arbitration in these contexts, even when arbitration would benefit a victim, because the bill fundamentally changes an arbitration clause from a mutual commitment to use an alternative dispute resolution into a one-sided election for an injured party.

If H.R. 4445 becomes law, contracts will be far less likely to include the option to arbitrate. If parties cannot agree in advance to arbitrate, the plaintiffs may never have access to arbitration. These unintended consequences will have real-world implications, especially for victims who lack deep pockets or do not have the possibility for a high-dollar settlement that some high-profile cases can obtain.

Lawsuits are often long and expensive, and big corporations have more resources to litigate than most victims. Litigation can be harrowing for victims who, in traditional litigation, must submit to rigorous discovery, depositions, or perhaps even the challenges of a public trial. And it may even be harder for victims to tell their stories in litigation and get justice, given the rules of evidence that may apply.

Democrats cast aside these concerns, and they ignore how arbitration is generally a good way to resolve disputes.

Why are some in Congress so intent on taking this legislation forward today? For years, Democrats have tried to gut arbitration agreements for all kinds of different claims and plaintiffs. If Democrats had their way, everyone--from consumers to civil rights plaintiffs, to those with antitrust claims, to individuals using financial service products, and others--would not be able to contract in advance to resolve disputes through arbitration. Instead, they would be forced into the courts.

Congress should stand ready to improve the legal system, but we must make sure that whatever Congress does will actually be an improvement. What we have before us today is Congress changing existing and agreed- to contracts.

I have real concerns about government retroactively nullifying existing contractual agreements, no matter how well-intentioned it is.

I urge you all to carefully consider the ramifications of H.R. 4445.

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Mrs. FISCHBACH. Madam Speaker, I yield 2 minutes to the gentleman from Virginia (Mr. Griffith).

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Mrs. FISCHBACH. Madam Speaker, I yield 2 minutes to the gentleman from Florida (Mr. Gaetz).

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Mrs. FISCHBACH. Madam Speaker, I yield 3 minutes to the gentleman from Colorado (Mr. Buck).

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Mrs. FISCHBACH. Madam Speaker, I yield 4 minutes to the gentleman from Ohio.

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Mrs. FISCHBACH. Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, we must consider the unintended consequences of H.R. 4445. This bill has good intentions. We all want to help victims of sexual harassment, but this bill is not going to accomplish that. There are many policy concerns in this piece of legislation.

I want to say again: What we have before us today is that Congress is changing existing and agreed-to contracts. I have real concerns about government retroactively nullifying existing contractual agreements.

If H.R. 4445 becomes law, contracts will be far less likely to include any option to arbitrate. This is a concern for victims who do not have the resources to pursue high-dollar settlements. We must also keep in mind that sometimes arbitration is the best way to solve disputes.

Arbitration does not void an individual's constitutional rights under the Seventh Amendment. This is just one of the many, many aspects of this bill that needs to be reconsidered before we can confidently move forward.

Madam Speaker, I oppose this bill, and I encourage my colleagues to do the same until we address the concerns surrounding this bill.

Madam Speaker, I yield back the balance of my time.

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