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Congress Passes Law Prohibiting Forced Arbitration of Sexual Harassment & Assault Cases

Emanuel Shirazi

Congress has approved a new bill that would end forced arbitration in workplace sexual harassment and sexual assault cases and would allow people to file a lawsuit in court if the alleging party chooses. The measure was originally introduced in 2017 by Sen. Kristen Gillibrand, D-N.Y., and Sen. Lindsey Graham, R-S.C. The bill had uncommonly strong bipartisan support and will soon be signed by President Joe Biden.

This law is a big win for the #MeToo movement that has prompted criticism on how sexual misconduct claims are handled. It is also a big win for all employees and likely other consumers who are forced into arbitration. Sen. Kristen Gillibrand claims it to be one of the most significant labor law changes in American history.

The bill would:
1/ nullify the language in employment contracts that force employees to bring sexual assault or harassment cases through arbitration—a process that is biased against employees and disproportionally benefits employers.
2/ bar arbitration clauses found in service agreements that have prevented those sexually assaulted in nursing homes or massage parlors from taking their claims to court.
3/ allow the alleging party to elect to file a lawsuit through the courts instead of forced arbitration—which has repeat player arbitrators who make the decisions, limited discovery, is without a jury, and without a chance to appeal a decision.
4/ allow for the publication of sexual misconduct allegations that stay secretive through the arbitration process. The secretiveness of arbitration has allowed corporations to avoid changing policies, protected perpetrators from public accountability, and has allowed for serial abusers to avoid removal. In effect, the nullification of the clause with this bill can kick start change in the workplace and can bring about justice for victims of sexual harassment and sexual assault.

Employer defenders of the arbitration process argue it is faster and less costly than court. Yeah, less costly for them. As Senator Graham pointed out, it doesn’t harm business to ensure harassment victims are treated fairly.

It’s estimated that 60 million American workers have arbitration clauses in their employment contracts. This new bill would open the door for people who were bound by these arbitration contracts to finally take legal action and return them their constitutional right of their day in court.

Learn More About Sexual Harassment Law / How to Report Sexual Harassment at Work?

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