A bill aimed at increasing the legal rights of employees who are victims of workplace sexual assault is finally signed into law.
The legislation, called the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, easily passed the U.S. House and Senate with overwhelming bipartisan support. President Joe Biden signed it into law last week. It was first introduced five years ago by Sen. Kirstin Gillibrand (D-NY) and Sen. Lindsey Graham (R-SC).
The law bans forced arbitration clauses in new employee contracts, which require victims to pursue their cases in private mediation with the accused individual. The behind-closed-doors practice shields perpetrators and prevents workers from having their stories heard in a public court.
The bill’s biggest advocate, Former FOX News anchor Gretchen Carlson, was instrumental in bringing it to national attention. Carlson revealed in 2016 that then-CEO Roger Ailes had sexually harassed her. Her contract’s arbitration clause restricted her from suing FOX, but her lawyers successfully sued Ailes as an individual.
Carlson said she was inspired to push for change by hearing from thousands of female victims without the benefit of her public platform who were denied justice from their employers.
The act, which will affect an estimated 60 million Americans, is the most significant passed by Congress to date related to the 2017 #MeToo sexual harassment movement.
What Does the New Law Do?
The new law does away with forced arbitration and gives victims the option to bring their dispute to state or federal court. They can still choose arbitration, but that option can be costly and cannot be appealed, unlike a court verdict.
The legislation is also retroactive, meaning it will void forced arbitration in currently open cases and allow those employees to go to court if they wish.
Sen. Graham speculated that the crackdown on arbitration would force corporations to “up their game” and adopt new employee protection measures.
He also noted that the bill was limited only to sexual assault and harassment claims, not other types such as discrimination and equal pay.
Several Republicans from the Senate and House both voiced strong support for the bill, marking a break in the usual pattern of knock-down-drag-out fights on the floor.
“I believe this is a good bill, a righteous bill, a just bill,” said Rep. Morgan Griffith (R-VA) in an NBC News interview. “When you start talking about sexual assault and sexual harassment, nobody goes into a new employment thinking, ‘Well, I better double check all the fine print and make sure there’s nothing in there that would allow me to be sexually harassed or sexually abused.’”
Law Allows Victims to Seek Justice
Sen. Gillibrand said after the bill’s passage that she believes the now-banned arbitration clauses “are especially prevalent in low-wage fields and industries with a disproportionate high number of women of color.” These women and other minorities will be able to seek justice, when before that chance was unattainable.
Other experts echo Sen. Graham’s comments on employers having no choice but to raise the bar on transparency.
“For me, the biggest message from this, if I were a corporate leader or if I were an employee, is that the days of having layers of structure in place that exacerbate that power differential between an employer and an employee need to kind of go away,” said sexual harassment prevention expert Patti Perez.
Several high-profile private companies banned forced arbitration for sexual harassment years ago, including Microsoft, Uber, Lyft, Wells Fargo and Facebook.
Carlson, who predicts her work to get the bill passed will be her “greatest life achievement,” is encouraged by the increase in female employees being taken seriously.
“I think we have made incredibly great strides,” she told PBS NewsHour. “Perpetrators are being held accountable … I also think a key to this is that the media started covering these stories, and the general public got angry when they heard them. And they wondered, why have we not heard [about this]? … because they were all going to the secret chamber of forced arbitration.”