House passes bill to end forced arbitration in sexual misconduct cases

The House passed legislation on Monday that would end the use of forced arbitration in lawsuits involving sexual assault and harassment claims. 

Lawmakers passed the bill on a bipartisan basis, 335-97. While 113 Republicans joined with all Democrats in support, 97 Republicans voted against it. 

The bill would ensure that people have the option of bringing a case alleging sexual assault or harassment in court, instead of being forced into arbitration proceedings that are often conducted in private and confidential hearings.  

It would do so by voiding clauses in agreements, such as employment contracts, that require disputes to go through the arbitration process. 

Critics of forced arbitration argue that the process tends not to favor employees or consumers, who on average win less frequently and secure smaller damages in the arbitration process than they do in court. 

“It’s time to do away with these legal traps for good,” said Rep. Cheri Bustos (D-Ill.), the measure’s chief sponsor. 

The legislation now heads to the Senate, where it’s expected to advance and reach President Biden for his signature as soon as this week. The Senate Judiciary Committee previously advanced its version of the bill back in November with support from members of both parties, including the panel’s top Republican, Sen. Lindsey Graham (S.C.).  

“Congress can finally act to empower victims of sexual assault and sexual harassment to speak openly, by nullifying forced arbitration clauses that push survivors into an often secret and biased process. We will not waste this historic opportunity,” Senate Majority Leader Charles Schumer (D-N.Y.) said Monday ahead of the House vote.  

While most House Republicans backed the legislation, others warned that the proposed reforms could unintentionally backfire since lawsuits can be more costly than the arbitration process.  

They further noted that the bill doesn’t stop entities from forcing people to sign nondisclosure agreements that would also shroud sexual misconduct claims in secrecy. 

“Lawsuits are often long and expensive, and big corporations have more resources to litigate than most victims,” said Rep. Michelle Fischbach (R-Minn.). “Put simply, agreeing to resolve a case outside of court is different than agreeing to silence.” 

Passage of the bill comes more than four years after the launch of the “Me Too” movement in late 2017, which prompted many people to publicly share their experiences of sexual harassment and assault, including against some members of Congress at the time.  

Lawmakers subsequently enacted reforms to their own workplace, including by requiring congressional offices to provide anti-sexual harassment training and reforming the process for congressional staff to file complaints.

But passage of the legislation to end forced arbitration agreements marks a significant reform in tackling sexual misconduct at the national level. 

One of the most prominent advocates for ending forced arbitration in sexual misconduct cases has been Gretchen Carlson, the former Fox News host who filed a lawsuit against the late Roger Ailes, the former head of the cable network. 

Carlson has testified before Congress about her experience being unable to sue Fox News because of a forced arbitration clause in her contract, leading her to sue Ailes personally, alleging sexual harassment. In the end, the network’s parent company agreed to settle the case for $20 million. 

“Yes we will make history and have all women’s voices lifted up!” Carlson tweeted ahead of Monday’s vote. 

The Biden administration said in a statement that it backs the legislation because it “empowers survivors” by giving them a choice to go to court.  

But the Statement of Administration Policy indicated that the president would be interested in reforming forced arbitration beyond sexual misconduct cases by noting that it “also looks forward to working with the Congress on broader legislation that addresses these issues as well as other forced arbitration matters, including arbitration of claims regarding discrimination on the basis of race, wage theft, and unfair labor practices.”