As an employment lawyer for more than 20 years, I can say with certainty that mandatory arbitration clauses are an employer’s best friend. By requiring employees to use arbitration rather than take cases through the court system, employers avoid public disclosure of embarrassing facts, the wrath of juries and much higher settlements.
When the Supreme Court held in 2018 that “companies may require workers to settle employment disputes through individual arbitration rather than joining to press their complaints, a decision affecting as many as 25 million workers,” employers breathed a sigh of relief. That respite ended last week when the Senate — by a voice vote no less — passed legislation championed by Sen. Kirsten Gillibrand (D-N.Y.) prohibiting mandatory arbitration in sexual harassment and assault cases. The bill now goes to the president’s desk.
Gillibrand first introduced the bill in 2017. Since then, the #MeToo movement swept through Congress and American workplaces, changing hearts and minds on the right of victims to seek legal recourse. Last year, Gillibrand reintroduced the bill alongside Sen. Lindsey O. Graham (R-S.C..).
At a news conference on Thursday, Gillibrand stood alongside former Fox News anchor Gretchen Carlson, who raised sexual harassment allegations against her former employer and boss Roger Ailes and became a forceful advocate against mandatory arbitration. Carlson had been instrumental in lobbying lawmakers and ensuring passage of the bill. (Disclosure: I am an MSNBC contributor.)
Gillibrand declared: “The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act will void existing forced arbitration agreements for sexual harassment and sexual assault and end their use. It will give survivors their day in court, allow them to discuss their cases publicly and end the days of institutional protection for harassers.”
Gillibrand also celebrated in a tweet:
Today the Senate passed my bill to #EndForcedArbitration, fixing a broken system that protected perpetrators and corporations and silenced survivors of sexual assault and harassment. This is one of the most historic workplace reforms in a generation. https://t.co/6umRM7a5rN— Kirsten Gillibrand (@SenGillibrand) February 10, 2022
She is right about the significance of the bill. Although some states have moved to curb mandatory arbitration, most have not. A number of progressive groups advocating for the ban last year wrote a letter to House Judiciary Committee Chair Jerrold Nadler (D-N.Y.). “According to the Economic Policy Institute, over 60 million workers, more than half of non-union, private-sector employees, have surrendered their right to go to court if harmed by their employer,” the letter stated. “It allows corporate employers to quash serious claims of systemic misconduct.”
Carlson also celebrated the hard-fought win. “This is a historic day,” she said in acknowledging the massive bipartisan support for a measure that was a nonstarter just a few years ago. She expressed hope that employers will get on the “right side of history,” redoubling efforts to eradicate sexual harassment, and that abusive bosses and co-workers will clean up their act.
Perhaps. What is clear is that there has been a sea change in public attitudes toward sexual harassment and assault — no thanks to the defeated former president, who has been accused of sexual misconduct by more than two dozen women and who has painted accused abusers as victims. (Donald Trump has repeatedly denied the allegations.) The subject is now one of the few topics that can command overwhelming congressional agreement.
In a dismal time for American rights (e.g., on voting, reproductive choices, etc.), this was a rare bit of good news in the fight for a more just society. To Gillibrand, who led the fight on this and other issues concerning sexual assault and harassment for years, as well as her co-sponsors and the many victims of harassment — including Carlson — who came forward to share their stories, we can say, well done.