[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]


                 SILENCED: HOW FORCED ARBITRATION KEEPS
                  VICTIMS OF SEXUAL VIOLENCE AND SEXUAL 
                  HARASSMENT IN THE SHADOWS

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                       TUESDAY, NOVEMBER 16, 2021

                               __________

                           Serial No. 117-46

                               __________

         Printed for the use of the Committee on the Judiciary

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]


               Available via: http://judiciary.house.gov
               
                                __________

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
46-552                    WASHINGTON : 2022                       
          
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                       COMMITTEE ON THE JUDICIARY

                    JERROLD NADLER, New York, Chair
                MADELEINE DEAN, Pennsylvania, Vice-Chair

ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr.,      DARRELL ISSA, California
    Georgia                          KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
KAREN BASS, California               MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
ERIC SWALWELL, California            W. GREG STEUBE, Florida
TED LIEU, California                 TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania       VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
LUCY McBATH, Georgia                 BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri

       PERRY APELBAUM, Majority Staff Director and Chief Counsel
               CHRISTOPHER HIXON, Minority Staff Director
                                 
                                 ------                                
                            
                            C O N T E N T S

                              ----------                              

                           November 16, 2021

                                                                   Page

                           OPENING STATEMENTS

The Honorable Jerrold Nadler, Chair of the Committee on the 
  Judiciary from the State of New York...........................     2
The Honorable Jim Jordan, Ranking Member of the Committee on the 
  Judiciary from the State of Ohio...............................     4

                               WITNESSES

Eliza Dushku, Actor/Producer & Graduate Student
  Oral Testimony.................................................     6
  Written Testimony..............................................     9
Tatiana Spottiswoode, Law Student, Columbia Law School
  Oral Testimony.................................................    13
  Written Testimony..............................................    19
Anna St. John, President and General Counsel, Hamilton Lincoln 
  Law Institute
  Oral Testimony.................................................    23
  Written Testimony..............................................    25
Andowah Newton, New York, New York
  Oral Testimony.................................................    32
  Written Testimony..............................................    35
Sarah Parshall Perry, Legal Fellow, Edwin Meese III Center for 
  Legal and Judicial Studies, The Heritage Foundation
  Oral Testimony.................................................    44
  Written Testimony..............................................    46
Lora Henry, Canton, Ohio
  Oral Testimony.................................................    59
  Written Testimony..............................................    61
Myriam Gilles, Professor of Law, Paul R. Verkuil Chair in Public 
  Law, Benjamin N. Cardozo School of Law
  Oral Testimony.................................................    64
  Written Testimony..............................................    66

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Photos of the Witness's neck and face after assault, submitted by 
  the Honorable Jerrold Nadler, Chair of the Committee on the 
  Judiciary from the State of New York for the record............    16
A report entitled ``The Arbitration Epidemic,'' Economic Policy 
  Institute, submitted by the Honorable Matt Gaetz, a Member of 
  the Committee on the Judiciary from the State of Florida for 
  the record.....................................................    96

                                APPENDIX

Items submitted by the Honorable Jerrold Nadler, Chair of the 
  Committee on the Judiciary from the State of New York for the 
  record
  An article entitled ``Eliza Dushku: I worked at CBS. I didn't 
    want to be sexually harassed. I was fired,'' The Boston Globe   164
  A letter from Jennifer C. Braceras, Director, Independent 
    Women's Law Center, November 15, 2021........................   170
  A letter from survivors of sexual harassment or assault, 
    November 3, 2021.............................................   173
  A letter from RALIANCE, October 28, 2021.......................   180
A letter from the National Association of Attorneys General, 
  February 12, 2018, submitted by the Honorable David Cicilline, 
  a Member of the Committee on the Judiciary from the State of 
  Rhode Island for the record....................................   184

 
                    SILENCED: HOW FORCED ARBITRATION
 KEEPS VICTIMS OF SEXUAL VIOLENCE AND SEXUAL HARASSMENT IN THE SHADOWS

                              ----------                              


                       Tuesday, November 16, 2021

                     U.S. House of Representatives

                       Committee on the Judiciary

                             Washington, DC

    The Committee met, pursuant to call, at 10:15 a.m., in Room 
2141, Rayburn House Office Building, Hon. Jerrold Nadler [Chair 
of the Cmmittee] presiding.
    Present: Representatives Nadler, Lofgren, Jackson Lee, 
Cohen, Johnson of Georgia, Bass, Jeffries, Cicilline, Raskin, 
Jayapal, Demings, Scanlon, Garcia, Neguse, McBath, Stanton, 
Dean, Escobar, Jones, Ross, Bush, Jordan, Chabot, Gohmert, 
Issa, Buck, Gaetz, Johnson of Louisiana, Biggs, McClintock, 
Steube, Tiffany, Massie, Bishop, Fischbach, Spartz, Bentz, and 
Owens.
    Staff Present: Perry Apelbaum, Staff Director and Chief 
Counsel; Aaron Hiller, Deputy Chief Counsel; Amy Rutkin, Chief 
of Staff; Arya Hariharan, Chief Oversight Counsel; David 
Greengrass, Senior Counsel; John Doty, Senior Advisor; Moh 
Sharma, Director of Member Services and Outreach and Policy 
Advisor; Jacqui Kappler, Oversight Counsel; Roma Venkateswaran, 
Professional Staff Member/Legislative Aide; Cierra Fontenot, 
Chief Clerk; John Williams, Parliamentarian and Senior Counsel; 
Gabriel Barnett, Staff Assistant; Atarah McCoy, Staff 
Assistant; Merrick Nelson, Digital Director; Kayla Hamedi, 
Deputy Communications Director; Joseph Van Wye, Professional 
Staff Member/Legislative Aide, Antitrust, Commercial, and 
Administrative Law; Slade Bond, Chief Counsel, Antitrust, 
Commercial, and Administrative Law; Ella Yates, Minority Member 
Services Director; Douglas Geho, Minority Chief Counsel for 
Administrative Law; Elliott Walden, Minority Counsel; Andrea 
Woodard, Minority Professional Staff Member; and Kiley 
Bidelman, Minority Clerk.
    Chair Nadler. The House Committee on the Judiciary will 
come to order.
    Without objection, the Chair is authorized to declare 
recesses of the Committee at any time.
    We welcome everyone to this morning's hearing titled 
``Silenced: How Forced Arbitration Keeps Victims of Sexual 
Violence and Sexual Harassment in the Shadows.''
    Before we begin, I would like to remind Members that we 
have established an email address and distribution list 
dedicated to circulating exhibits, motions, or other written 
materials that Members might want to offer as part of our 
hearing today.
    If you would like to submit materials, please send them to 
the email address that has been previously distributed to your 
offices, and we will circulate the materials to Members and 
staff as quickly as possible.
    I would also remind Members that guidance from the Office 
of Attending Physician states that face coverings are required 
for all meetings in an enclosed space, such as Committee 
hearings, except when you are recognized to speak.
    I now recognize myself for an opening statement.
    Arbitration was originally developed as an alternative to 
the court system for parties of relatively equal bargaining 
power to enter voluntarily.
    In recent decades, however, forced arbitration, which lacks 
many of the fundamental due process and transparency safeguards 
present in the courts, has worked its way into nearly every 
aspect of our lives, largely in the form of ``take it or leave 
it'' contracts between very large companies and individual 
consumers. The sum total of this trend is that forced 
arbitration clauses have rendered our court system inaccessible 
to far too many.
    Nowhere is that trend more apparent or problematic than in 
the workplace. It's projected that by 2024, 80 percent of 
private sector workers will be forced to sign an arbitration 
clause when accepting employment--a full 80 percent of our 
fellow citizens. Consider that, over the past 5 years, 
employers prevailed over their employees in 98.1 percent of 
these arbitration cases.
    Somewhere in the paper these workers were required to sign, 
they bound themselves to a system in which they are nearly 
guaranteed to fail, they foreclosed the possibility of ever 
having their day in court, and in nearly all these instances 
they even gave up the right ever to talk about their 
experience.
    Now, it is easy to quantify the percentage of workers who 
give up their right to a trial by jury to get a job. We can 
count the number of individuals who have no idea what they have 
given away until it is too late.
    It is difficult to fathom the true human toll of forced 
arbitration, stories that cannot be distilled down to a number 
or a statistic. That's why we are here today--to step back from 
the statistics and talk about a system that is fundamentally 
unjust.
    Four of our Witnesses today are survivors of sexual 
harassment and sexual assault. We are here to listen to their 
stories. Because they were forced into arbitration agreements 
as a condition of their employment, this is the first time many 
of these stories will be told in public.
    By forcing these women into silence, by denying them their 
day in court, forced arbitration allowed toxic office cultures 
to flourish and emboldened sexual predators to operate with 
impunity.
    For each one of the survivors before us today, imagine the 
thousands of forced arbitration schemes that worked. An 
employee who really needed that job scared into silence. The 
person forced to look for other work in another field after 
being fired for reporting their sexual trauma. The colleagues 
who Witnessed their coworker fired for doing the right thing 
but who just cannot afford to make the same choice. The new 
employee who will never know that their boss is a predator 
because everyone involved in the last incident must remain 
silent or lose their job.
    Think of all the employees who went into arbitration. Think 
of the few who won against staggering odds. Remember that, even 
now, the vast majority still cannot say anything about what 
they have endured. Remember that there are people who feel 
comfortable sexually harassing and stalking their colleagues 
because they know they will never have to go to court or face 
public pressure. Remember that forced arbitration of sexual 
assault claims allows hundreds of companies to look the other 
way.
    Because, in a system that binds employees to secrecy 
forever, a company with a history of sexual assault and 
harassment claims against its executives is going to manage 
that liability by forcing its employees to sign an arbitration 
clause.
    In a system that sides with the company 98 percent of the 
time, accusations of sexual assault will remain hidden forever. 
The company gets to pick the judge and the jury, truncate the 
discovery process, choose the law applied, and prevent all 
appeals. When the company wins, it can request that the victim 
pay its attorney's fees.
    In this context, forced arbitration sounds repulsive--
because it is. We have created a system in which American 
companies are seemingly better off retaliating against victims 
of sexual assault than taking responsibility and holding the 
perpetrators to account.
    Forced arbitration has robbed survivors of sexual violence 
and sexual harassment of their voice. The four victims who 
appear before us today are only here because a congressional 
subpoena has compelled their testimony. Without that subpoena, 
they would still be unable to share their stories.
    Before we begin, we should take a moment to observe their 
bravery. They stood up to their harassers. When they were told 
to stay silent, they resisted. When they had the opportunity to 
appear before Congress and in front of the world, they came 
forward to give their testimony. This is true courage, and this 
Committee and the American people are grateful.
    These Witnesses are not here for themselves. They are not 
here to restart their arbitrations. As much as we might like to 
do so, we in Congress cannot change the outcome of those cases.
    No, these brave women are here for the countless 
individuals without a voice. Not just women, but all those who 
have been assaulted and harassed and don't know where to turn--
the person who was fired for reporting sexual harassment and 
just found out they signed an arbitration clause in that mess 
of papers they were given on their first day, and the new 
employee who might be the next victim of a predator operating 
under the protection of forced arbitration.
    The survivors before us today were silenced by their forced 
arbitration clauses. They are here to show us what a world with 
accountability might look like. I, for one, am here to listen. 
I thank all of you for being here today.
    I now recognize the Ranking Member of the Judiciary 
Committee, the gentleman from Ohio, Mr. Jordan, for his opening 
statement.
    Mr. Jordan. Thank you, Mr. Chair, for convening today's 
hearing.
    First, I just want to thank our Witnesses for courageously 
agreeing to be here today.
    The Judiciary Committee is charged with safeguarding 
America's most fundamental rights, and we all know that a right 
without a remedy is no right at all. We must make sure that the 
pathways that Americans must resolve their disputes function 
properly and are fair to everyone. That is true for our court 
system and for other dispute resolution mechanisms, like 
arbitration.
    In fact, Congress enacted the Federal Arbitration Act 
nearly a century ago, and today arbitration provides an 
alternative to the cumbersome and expensive process of a civil 
lawsuit.
    Arbitration is a process that should be as fair as court, 
but also easier, more affordable, and much faster. Going to 
court can be extremely expensive if you are an average citizen 
bringing suit against a major business entity who has an army 
of attorneys.
    As we examine the benefits of arbitration and the areas for 
reform, we should be careful not to frame the question as one 
of arbitration versus jury trial in a court. Over the last 90 
years, the number of civil cases that reached conclusion 
through trial has declined substantially. In other words, if 
you are not in arbitration, it is highly likely your 
alternative to resolve your dispute is a protracted settlement 
negotiation involving major attorney fees.
    We all understand the benefits that arbitration provides. 
However, if the arbitration system is not functioning properly 
and is being used to stifle individual rights, we have an 
obligation to fix it.
    Any reforms must be done in a way that benefits the parties 
to the suit and advances the interests of fairness and justice. 
It would be wrong for us to make reforms that do not benefit 
the parties to the dispute but rather enrich the lawyers who 
seek to exploit suffering and hardship by taking a major cut of 
any damages that are awarded.
    Finally, I would like to thank again all our Witnesses for 
their testimony, particularly the Witnesses who have shared 
their personal stories. Thank you all for taking the time to be 
here today to help us better understand how our arbitration 
system needs to work.
    Thank you, Mr. Chair, and I yield back.
    Chair Nadler. Without objection, all other opening 
statements will be included in the record.
    I will now introduce today's Witnesses.
    Eliza Dushku is an actor, producer, student, and 
philanthropist. She has been a professional actress for over 30 
years and has appeared in numerous television shows and 
independent films. Today she is a psychology master's degree 
candidate in a graduate program in greater Boston.
    Tatiana Spottiswoode is a first-year law student at 
Columbia Law School. Previously she was a Business Analytics 
Associate at Afiniti. She received her undergraduate degree in 
philosophy and classics from Brown University.
    Anna St. John is President and General Counsel of the 
Hamilton Lincoln Law Institute. Previously she clerked for 
Judge Rhesa H. Barksdale on the Fifth Circuit Court of Appeals 
and as an Attorney with Covington & Burling, LLP. Ms. St. John 
earned her law degree from Columbia Law School.
    Andowah Newton is Vice President for Legal Affairs and head 
of litigation at LVMH, Louis Vuitton Moet Hennessy, Inc. I hope 
I got that pronunciation right. Before joining LVMH--that's 
easier--before joining LVMH in 2015, Ms. Newton litigated 
complex commercial cases for several years in private practice. 
Ms. Newton began her legal career as a Judicial Clerk for the 
First Vice-President Judge of the International Criminal Court 
in The Netherlands. She earned a Bachelor of Science degree 
from Georgetown University and dual law degrees in U.S. and 
French law from Cornell Law School and The Sorbonne.
    Sarah Parshall Perry is a Legal Fellow for the Edwin Meese 
III Center for Legal and Judicial Studies, part of the 
Institute for Constitutional Government at the Heritage 
Foundation. Previous positions include serving as Senior 
Counsel to the Assistant Secretary for Civil Rights at the U.S. 
Department of Education and Senior Fellow for Education Reform 
at the Family Research Council. Ms. Perry earned a Bachelor of 
Science from Liberty University and a law degree from the 
University of Virginia School of Law.
    Lora Henry began her career in the dental field where she 
worked for 16 years and earned a degree in dental hygiene from 
Stark State University. She then chose to leave the dental 
field and follow her dream of owning her own business in the 
restaurant industry. After 9 years, she chose to switch careers 
and now is a Sale Associate for Waikem Mitsubishi in Canton, 
Ohio.
    Myriam Gilles served as the Paul R. Verkuil Research Chair 
in Public Law and Professor of Law at the Benjamin Cardozo 
School of Law. From 2016-2018, she also held the post of Vice 
Dean for Academic Affairs. Professor Gilles received a Bachelor 
of Arts from Harvard-Radcliffe Colleges and a law degree from 
Yale Law School.
    We welcome all our distinguished Witnesses, and we thank 
them for participating today.
    I will begin by swearing in our Witnesses. I ask that our 
Witnesses in person please rise and raise your right hand. I 
ask that our remote Witness please turn on her audio and make 
sure I can see your face and your raised right hand while I 
administer the oath.
    Do you swear or affirm under the penalty of perjury that 
the testimony you are about to give is true and correct to the 
best of your knowledge, information, and belief, so help you 
God?
    Let the record show that the Witnesses have answered in the 
affirmative.
    Thank you, and please be seated.
    Please note that each of your written statements will be 
entered into the record in its entirety. Accordingly, I ask 
that you summarize your testimony in 5 minutes.
    To help you stay within that time limit, there is a timing 
light on your table. When the light switches from green to 
yellow, you have 1 minute to conclude your testimony. When the 
light turns red, it signals your 5 minutes have expired.
    For the Witness appearing virtually, there's a timer on 
your screen to help you keep track of time.
    Ms. Dushku, you may begin.

                   TESTIMONY OF ELIZA DUSHKU

    Ms. Dushku. Thank you.
    Good morning, Chair Nadler, Members of the Committee. I'm 
Eliza Dushku, an actress, producer, new mother of two, and 
currently a graduate student in my hometown of Boston.
    I've worked in the entertainment industry from the time I 
was 9 years old in numerous movies with actors such as Robert 
DeNiro, Leonardo DiCaprio, Halle Berry, and Arnold 
Schwarzenegger, more recently as the lead in two network 
television series.
    I appreciate the opportunity to speak to you today about 
this important issue and will share my experience as a victim 
and survivor of sexual harassment in the workplace and as 
someone who was fired and silenced when I attempted to address 
it.
    In 2017, I was aggressively pursued by CBS to become a co-
lead on a show called ``Bull.'' I was told that the role would 
be a 6-year commitment to play a smart, strong leading lady, a 
confident high-powered lawyer meant to counterbalance the 
existing male lead, and that the role had been written 
specifically with me in mind.
    However, in my first week on my new job, I found myself the 
brunt of crude, sexualized, and lewd verbal assaults. I 
suffered near constant sexual harassment from my co-star. This 
was beyond anything I had experienced in my 30-year career.
    My male co-star, who was also one of the show's producers, 
would frequently refer to me as ``Legs.'' He would smell me and 
leeringly look me up and down.
    Off-script, in front of about one hundred crew members and 
cast members, he once said that he would take me to his ``rape 
van'' and ``use lube and long phallic things'' on me and take 
me over his knee and spank me like a little girl. Another time 
he told me that his sperm were ``powerful swimmers.''
    These are just a few examples. These were not lines in the 
script. They were incessant and demeaning and directed at me in 
the middle of what was supposed to be a professional workplace.
    Per my history, I tried to be professional and just do my 
job, but was relentlessly sexualized, crudely mocked, and 
laughed at. I began dreading going to work each day and often 
rode home in silence, on the verge of tears, feeling this 
confusing shame over not having been able to stick up for 
myself more. I feared that if I pushed back or reacted 
strongly, my job could be at risk or my professional reputation 
could be harmed.
    One day, after I delivered a courtroom monologue that I had 
spent significant time rehearsing, my co-star shouted out that 
he and his buddy wanted to have a ``threesome'' with me and 
began mock penis-jousting while the camera was still rolling.
    Then, as I walked off to my coffee break in between scenes, 
a random male crew member sidled up to me at the food service 
table and whispered, ``I'm with Bull. I want to have a 
threesome with you too, Eliza.''
    I was horrified and became physically nauseous. I had just 
been humiliated in front of one hundred co-workers on the set 
by the star, and now it seemed it was open season for others to 
demean me sexually too. My co-star's behavior continued and 
increased. It was pervasive and mean and intentionally 
disempowering. It was awful.
    As vulnerable as it feels to admit, I began to borrow my 
husband's sweatpants and wore big Timberland boots to work to 
avoid more comments about my appearance.
    Over the years I'd become accustomed to the usual banter 
that occurs on a set. This was very different. The multiyear 
contract I agreed to was a big deal, and my drive to succeed 
was strong. I had received rave reviews from the showrunner, 
who is the person in charge of the shows, and others at CBS. I 
wanted to make the show work, and I loved the role that had 
been created for me.
    I spoke with my manager, and we decided that I would try to 
address the intolerable sexual harassment I was being forced to 
endure. I had built a professional reputation and should have 
been able to speak directly with my co-star as an equal. I 
specifically asked him to be my ally on set and tone down some 
of the sexualized comments directed at me, especially because 
he set the tone for the workplace.
    Admittedly, I was nervous, but I shared with him how he 
made me feel on set and asked if he'd work with me to rectify 
this. He responded in feigned shock, ``No one is more 
respectful of women than me. I grew up with sisters.''
    What I found out later was that 40 minutes after this 
conversation, he texted the head of CBS Studios that I had a 
``humor deficit'' and he didn't want me on the show. The CBS 
studio head replied that I was great and made the show better.
    I was fired the next day.
    The showrunner told me straight-up that after the next 
episode I would not be returning. He even suggested that I ask 
CBS and Steven Spielberg, whose company, Amblin, co-produced 
``Bull,'' for my own show because he thought my work was so 
impressive.
    Now, I've worked as an actress since I was a child and 
signed countless contracts negotiated on my behalf, but never 
understood that there were mandatory arbitration clauses that 
would be used to keep what had happened to me a secret and 
would protect CBS and the sexual harassment perpetrator who had 
blatantly retaliated against me for trying to stop the 
harassment in my workplace. I was shocked to learn that I had 
signed away my rights to a public forum before taking a job.
    Who would ever think up such a clause? Who are these 
clauses meant to favor and protect? It suddenly became clear: 
Not me.
    I began to understand how very limited my options were to 
try to address the prohibited sexual harassment and illegal 
retaliation I had experienced.
    In response to a letter from my counsel, CBS handed over 
hundreds of hours of tape which included video of the actual 
harassment. It was captured verbatim on their tapes. No one 
other than my legal advisers and CBS has ever seen or will ever 
see those tapes. I was trapped by the binding arbitration 
clause I had unknowingly signed.
    For the next year, I found myself pitted against one of the 
most powerful media corporations in the world, CBS, with its 
unlimited resources, which was controlled by the men who used 
the arbitration clause to protect themselves, their profitable 
show, and to silence me.
    To this day, whenever my career, my life's work, is 
referenced, my accomplishments as an actor are ignored. I've 
been reduced to being Eliza Dushku, the actress who was paid 
off for ``allegedly'' being sexually harassed on a TV series.
    As I hope you can understand, this was not the outcome I 
desired, nor ever expected. Because of binding arbitration, 
there will never be real justice for me and for countless other 
victims of sexual harassment and assault.
    Lastly, there's an irony that I fully understand: I'm 
getting to break that silence today. Countless others who are 
bound by arbitration are not so fortunate.
    I offer my strength and solidarity to all the other brave 
women who will speak today. We can help end this. 
Accountability and transparency aren't partisan issues.
    Thank you for hearing me and for considering this important 
legislation.
    [The statement of Ms. Dushku follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chair Nadler. Thank you.
    Ms. Spottiswoode, you are recognized for 5 minutes.

               TESTIMONY OF TATIANA SPOTTISWOODE

    Ms. Spottiswoode. Thank you, Chair.
    I first met Zia Chishti, the multimillionaire founder of 
Invisalign and the founder and CEO of Afiniti, when I was 12 or 
13. He was a business associate and friend of my father's. He 
would take our family out to dinner when he was in town. My 
father owned Afiniti stock and believed that he and my mother 
would retire very comfortably from that stock.
    When I was in my senior year of college in December 2014, 
Chishti, who was 43 at the time, invited me on a ski trip. I 
was 21. I initially declined, but he insisted that he wanted me 
to meet his nephew, who also studied philosophy, so I agreed. I 
later learned that the nephew, who never showed up, didn't 
exist.
    The trip was designed to groom me. Chishti told me he had 
feelings for me and showed me an extravagant lifestyle. I 
rejected him then, but after he persisted in pursuing me, 9 
months later I agreed to date him. After spending time together 
about five times over 10 weeks, I broke off the relationship.
    Months later, Chishti encouraged me to join his company. He 
presented a rosy picture of a great career opportunity. 
Naively, I believed him. Chishti assured me that he did not 
expect a sexual relationship.
    In April of 2016, I signed a contract with Afiniti that 
included an arbitration agreement with a strong confidentiality 
clause. I did not know what that meant at the time. I was just 
excited and relieved to be making $60,000 a year.
    As it turned out, Chishti was not willing to treat me like 
an employee. Instead, over the next 18 months, he oscillated 
between pressuring me for sex and punishing me. When I rebuffed 
him, he humiliated me in front of coworkers and then ignored me 
completely, causing me to fear for my job.
    Early in my employment, I declined to go to Cuba with 
Chishti and a friend. He was very angry and refused to speak to 
or acknowledge me for months.
    During a work meeting in Dubai, he put his hand inside my 
pants and grabbed my butt in front of coworkers. No one took 
any action on my behalf.
    During that same trip, he turned his attention to another 
20-something female employee, also the daughter of someone 
Chishti called a friend. The next morning, she texted him that 
she felt violated, that she had asked him to stop many times, 
and that he knew how drunk she was.
    Afiniti executives and Chishti arranged for her to fly home 
early and later paid her a secret settlement, and the company 
did nothing to protect other Afiniti women, including me.
    Chishti orchestrated evening social gatherings for his 
employees in far-flung locations, where heavy drinking was the 
norm. I never saw any company sexual harassment policy or 
training. When I asked the head of my office what I should do, 
he suggested that I avoid Chishti. Chishti made that 
impossible.
    As the CEO of the company, he had power over my life and 
career, and I was anxious not to insult him or make him mad. I 
explained that I didn't want to have a sexual relationship with 
him in as many different ways as possible. I said it in person, 
but I also wrote it in texts and emails. I reminded him in 
almost every interaction that we had. I told him that his 
demands were causing me extreme stress, including panic 
attacks, as well as forcing me to look for work elsewhere.
    He repeatedly got angry at me for rejecting his advances, 
such as when he requested to buy me expensive clothes. He 
called me a bitch in front of coworkers when I refused to hold 
his hand.
    In just one email in January 2017, I wrote to Chishti, 
``Three times you have behaved inappropriately and with my 
explicit nonconsent.'' I reminded him that I had said to his 
face, ``Zia, this is not consensual. I don't want this.'' I 
told him these experiences were ``frightening, degrading, and 
embarrassing for me. I do not trust you when you are drunk, and 
these experiences make me feel scared and apprehensive.''
    Instead of changing his behavior towards me, Chishti became 
more hostile. In writing, he called me petulant, accused me of 
playing angsty games, and he told me I needed to ``fix my 
behavior.''
    In the weeks before a performance review with Chishti of my 
Brazil accounts, Chishti's suggestions became more and more 
violent. I summoned my courage and told him that his sexual 
demands made me fear that I was going to lose my job and were 
causing me to have panic attacks.
    In response, he sent me two pornographic emails describing 
his rape fantasy, including strangling me while having sex. I 
was stunned and horrified and tried to ignore them.
    In Brazil, I avoided him as much as I could but was under 
increasing pressure from him. I began to worry that, in 
addition to wanting sex, Chishti wanted to hurt me and punish 
me for rejecting him.
    After my presentation, I attended dinner with Chishti and 
colleagues. Later that night, I went to the hotel bathroom and 
texted him that I was sick and going back to my hotel. Chishti 
replied that he would meet me there. I said I was vomiting. He 
said he was on his way. I admitted that I was still at his 
hotel.
    I felt completely trapped and hopeless. I was 23 and very 
far from home. I didn't want to lose my job. I didn't want him 
to get any angrier. I did not feel that anyone would protect 
me, and I was too tired to argue with him anymore.
    I went to his room, where he beat me while having sex with 
me. I told him he was hurting me. He said, ``Good.'' He told me 
he should have had sex with me when we first met when I was 13 
years old. When I left, he said, ``We should do this more 
often.''
    I hid in my hotel room until the next day. My body was 
covered with scratches, cuts, and contusions. I had bruises 
around my neck that looked like I had been strangled, a large 
bump on my head, and a Black eye. A nurse at the hospital said 
that I had the symptoms of a concussion.
    Mr. Chair, I seek unanimous consent to enter into the 
record two photos of my neck and face that day at the end.
    Chair Nadler. Without objection.
    [The information follows:]

    

                       MR. NADLER FOR THE RECORD

=======================================================================

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    Ms. Spottiswoode. Thank you.
    As soon as my lawyers contacted Afiniti, Chishti initiated 
an arbitration against me. He knew that the secrecy of 
arbitration would protect him.
    Nine months later, just before my deposition, to punish and 
scare me, he sued my father, who had quit the day I returned 
from Brazil, in secret arbitration.
    In May 2019, the arbitrator in my case ruled that I had 
been sexually harassed and assaulted by Chishti. Since then, 
Chishti's lawyers at Morgan Lewis have tried to get me to 
vacate the arbitration award.
    In exchange for erasing the arbitration ruling, they 
offered to let me keep the money awarded, drop the claim 
against my father, and give my father $1 million.
    They sued my father and then offered to give him $1 million 
if I erased the ruling, probably so Afiniti and Chishti could 
hide it from his future victims and from potential shareholders 
if the company goes public.
    It's still not over. My father's arbitration has been going 
on for 3 years and has already cost him tens of thousands of 
dollars in attorney fees.
    The harassment and assault I endured were hard enough on my 
family, but we still manage the financial and emotional burdens 
of being sued by my abuser in secret arbitration.
    Chishti still has power over me. He is still able to 
frighten me. Forced arbitration is the reason Chishti is able 
to carry out this ongoing campaign of retaliation against me, 
my family, and probably other victims.
    Today, as I speak here, I am afraid of the consequences for 
my family that will arise from my speaking out. I have PTSD. I 
have nightmares. I used to be a very social person, and I no 
longer am. The person who changed my life forever continues to 
abuse me because forced arbitration gives him the power to do 
it in secret.
    [The statement of Ms. Spottiswoode follows:]
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    Chair Nadler. Are you finished?
    Thank you.
    Ms. St. John, you are recognized for 5 minutes.

                   TESTIMONY OF ANNA ST. JOHN

    Ms. St. John. Chair Nadler, Ranking Member Jordan, Members 
of the Committee, thank you for inviting me to appear today. It 
is my honor and privilege to appear before you.
    In my few minutes, I would like to discuss how arbitration 
can provide an alternative method of resolving disputes by 
which parties can avoid some of the shortcomings present in our 
civil justice system and why removing it as an option for 
dispute resolution is not in the best interests of those 
subjected to sexual harassment and assault.
    Studies show that arbitration provides a faster and less 
expensive way for employees and consumers to resolve their 
claims against their employers and other companies and to 
obtain greater relief on average than they receive through 
litigation in court.
    Arbitration tends to be more flexible, both in terms of the 
formality and scheduling of the proceedings, making it easier 
for claimants to participate. It involves less burdensome 
discovery and less adherence to traditional rules that may make 
litigation in court inaccessible and overly intimidating.
    There are organizations that support arbitration 
proceedings to provide some uniformity and to increase 
accessibility and fairness for individual claimants, while also 
helping to lower the cost for employees bringing claims against 
their employers.
    Employees may also realize secondary benefits from 
arbitration. Because arbitration is a faster and less expensive 
way of resolving disputes, companies may have more funds to 
devote to employee benefits or to lowering costs for consumers.
    The judicial system itself, including the U.S. Supreme 
Court, has expressly recognized the benefits of arbitration. 
Congress, of course, recognized benefits as well in passing and 
maintaining the Federal Arbitration Act, which has been in 
place for nearly a hundred years.
    So, when we talk about the problems with arbitration 
clauses, I think it's important to keep in mind that 
arbitration is not necessarily a danger or impediment to those 
who have experienced sexual harassment or assault in the 
workplace or elsewhere. Instead, it's worth considering that 
taking away the possibility of arbitration for these victims is 
a top-down, heavy-handed approach that denies them the 
advantages of arbitration as a means of adjudicating their 
claims.
    It's also worth keeping in mind that an agreement to 
arbitrate does not impact the party's substantive claims. A 
claimant retains the same rights as she would in court, but 
simply submits her claim to adjudication in a less formal 
setting. Perhaps in recognition of this fact, courts allow 
parties to arbitrate even grave injuries, such as claims 
involving wrongful death.
    The court system is not necessarily the answer to concerns 
about arbitration. Overburdened courts are often slow moving, 
and as a result, it is the attorneys who benefit from the 
prolonged resolution without any proportionate benefit to the 
victims.
    Class actions do not provide a solution either, as sexual 
harassment and assault claims are often too individualized for 
class treatment, and, in any event, class actions are slow 
moving and often disproportionately benefit the attorneys while 
inefficiently distributing relief to the victims.
    Sexual harassment and assault victims may also prefer 
arbitration because it allows them to choose to keep the 
proceedings confidential.
    Unfortunately, these claims continue to often carry a 
stigma that victims may want to avoid to continue their day-to-
day lives without suffering professional damage or negatively 
impacting their ability to earn a living.
    While the public nature of a handful of high-profile cases 
has had a positive trickle-down effect, the same is not going 
to be true for many more routine sexual harassment cases. These 
victims should not be forced to have their claims adjudicated 
publicly, and, in fact, many would likely forego bringing 
claims at all if they could not be handled privately, such as 
through arbitration.
    Arbitration, in itself, is a process that would not prevent 
victims from reporting criminal conduct or the underlying facts 
of the claims if they choose. Concerns about confidentiality 
agreements and NDAs can be addressed without taking away the 
positive advantages that arbitration can provide.
    Thank you.
    [The statement of Ms. St. John follows:]
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    Chair Nadler. Thank you.
    Ms. Newton, you are recognized for 5 minutes.
    Can you put on your mic?

                  TESTIMONY OF ANDOWAH NEWTON

    Ms. Newton. Sorry, it's my first time.
    Chair Nadler, Ranking Member Jordan, and distinguished 
Members of the Judiciary Committee, thank you for inviting me 
here today. It is an immense honor. I am joined by my father, 
mother, and two of my brothers seated behind me.
    Before I begin, I want to State that my remarks reflect my 
personal experience only and have not been made in any 
professional capacity, and I testify under subpoena issued to 
me by this Committee.
    While my professional and academic profile may not fit the 
image of someone rendered powerless by and treated inhumanely 
through forced arbitration, none of my achievements has 
protected me from the years of intense retaliation, 
dehumanization, and degradation to which my employer, LVMH, has 
subjected me.
    In December 2014, I was offered the position of director, 
litigation counsel for the American affiliate of LVMH Moet 
Hennessy Louis Vuitton, the French conglomerate with brands 
like Dior, Dom Perignon, Fendi, Givenchy, Veuve Clicquot, and 
Rihanna's Fenty. I was ecstatic. It was my dream job.
    I attempted to negotiate several aspects of my employment 
agreement, but LVMH made it clear that no aspect, including the 
forced arbitration clause, was negotiable. It was a ``take it 
or leave it'' offer.
    I accepted and achieved glowing, flawless performance 
reviews. My boss, the U.S. General Counsel, wrote, ``Andowah 
reflects the highest degree of honesty and ethics in all she 
does and handles all matters with a calm demeanor.''
    I was soon promoted to Vice President of Legal Affairs.
    I was also being sexually harassed by LVMH's Director of 
Property and Facility Operations, Lloyd Doran, a White male 
about 30 years older than me. He supervised a large staff, 
reported directly to an SVP who reported to the CEO, and was 
part of the most senior executives' inner circle.
    I barely knew him when he began leering at me every time he 
saw me. He would walk by office very slowly, skimming the 
doorway. That escalated to him lurking directly outside of my 
office for such excessive periods of time that a colleague 
confronted him about it.
    At work gatherings, he pointedly leered at me and as soon 
as I entered the room would suddenly appear near me. The fact 
that he monitored all security videos and oversaw security 
staff especially concerned me. I repeatedly rebuffed his 
advances but that had no effect.
    One day he entered my office with the excuse of hanging 
artwork. Suddenly, without warning, he lunged towards me, 
thrusting his pelvic area into my face as I sat at my desk. He 
pinned his body horizontally on top of my mine. I exclaimed in 
shock while trying to unpin my body from under his. After I was 
able to stand up, he pretended that he had done nothing wrong 
despite my protests.
    This left me constantly agitated and distressed, 
preoccupied with avoiding the trauma of encountering him. I 
listened out for the ding of the elevators, avoided the 
stairwells or working very late in the office, and, when I had 
to, barricaded myself inside my office to try to feel safe.
    When he continued to lurk outside my office, I became 
anxious and stressed to the point that I had tremendous 
difficulty concentrating on my work. It was persistent, 
disruptive, and suffocating.
    You would think all you need to do to stop things like this 
would be to report it. I too thought that would end it. The 
opposite was true. I was about to receive a horrifying lesson 
on the power of forced arbitration.
    In the following days, LVMH ignored my verbal and written 
reports and failed to do anything to stop it. They instructed 
me to personally confront him despite the concerns I expressed. 
My supervisors even reported me for confronting him.
    Then they investigated me. They disregarded my colleague's 
testimony who had Witnessed some of the behavior and confronted 
him. Company management even went so far to suggest that I 
should apologize to him.
    Ultimately, management blamed me for misinterpreting the 
leering, the constant attempts to be near me, and the attempted 
assault, calling it mere flirtation based on my 
misunderstanding of French culture, even though Lloyd is 
American, and I spent many years, as you heard, studying and 
living in France.
    They told me this is what executives do in a French 
company. They seemed to justify his misconduct because the 
general counsel felt as professional women there are certain 
things we have to put up with and sacrifices we have to make.
    After repeatedly rejecting my requests to engage an 
experienced, unbiased investigator, LVMH suddenly reversed 
course and paid for an outside investigator. She was unable to 
keep the facts straight, suggested I should be flattered by the 
harassment, and asked me if I wanted to keep my job, and warned 
that I would look like a ``troublemaker'' and a ``son of a 
bitch.'' Excuse my language.
    Then, even before completing the investigation, LVMH 
promoted Lloyd and publicly announced his promotion to all 
employees at a company event. The investigator initially 
proposed issuing Lloyd an internal restraining order, but after 
conferring with LVMH, her final report was modified.
    Emboldened, Lloyd strutted around the hallway outside my 
office more than ever. My boss began lowering my annual 
evaluation ratings and inserting hypocritical and snarky 
comments. She excluded me from high-profile projects and warned 
that she would be keeping an eye on me.
    LVMH left me with no choice but to file a lawsuit. They 
immediately tried to force my case into arbitration, 
threatening my attorneys and jeopardizing my case--sorry--
jeopardizing my career and my livelihood by seeking sanctions 
against me personally.
    The CEO then emailed all employees, essentially calling me 
a liar, misstating LVMH's knowledge, denying any retaliation, 
and mischaracterizing the investigator's results. He also 
pretended that a new system created solely for anticorruption 
issues suddenly had a secondary function of receiving sexual 
harassment reports from employees. LVMH repeated similar lies 
to the press and the court.
    In 2020, I had to be hospitalized twice due to a serious 
physical issue, likely triggered by the trauma and stress LVMH 
incessantly inflicted on me. My case is now in forced 
arbitration, and I have Witnessed firsthand some of the 
numerous ways it is biased and unjust against survivors.
    Forced arbitration and the power it provides employers 
seems to have emboldened LVMH, who ramped up their retaliation, 
gaslighting me and inferring that the sexual assault and 
harassment were figments of my imagination. LVMH has been so 
relentless in forced arbitration that I had to take unpaid 
medical leave this year due to their personal attacks.
    By leveraging forced arbitration, LVMH potentially 
endangered other employees. Had I not filed a complaint, LVMH 
would have permitted Lloyd and perhaps others like him to 
continue working there to this day.
    Because of forced arbitration and confidential settlements, 
I may never know the extent to which Lloyd sexually assaulted 
or harassed others or if LVMH retaliated against others as they 
did me.
    Thank you for unsilencing me today. You each stand in a 
position of far more privilege and power than most Americans 
could ever dream of. I hope that you use that position to 
protect us and your loved ones by ending forced arbitration.
    [The statement of Ms. Newton follows:]
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    Chair Nadler. Thank you.
    Ms. Perry, you are recognized for 5 minutes.

               TESTIMONY OF SARAH PARSHALL PERRY

    Ms. Parshall Perry. Good morning.
    Chair Nadler, Ranking Member Jordan, Members of the 
Committee, thank you for giving me the opportunity to appear 
before you today. I commend this Committee for holding a 
hearing on an important topic.
    Today's hearing is, unfortunately, to quote the great Yogi 
Berra, ``deja vu all over again.'' Since the 1980s, the 
progressive leadership of this and the upper Chamber has sought 
to curtail the protections of the Federal Arbitration Act 
through bills, including the Arbitration Fairness Act, 
Arbitration Fairness for Students Act, Consumer Mobile Fairness 
Act, Fairness in Nursing Homes Act, Consumer Fairness Act, 
Restoring Statutory Rights and Interests of the States Act, the 
Forced Arbitration Injustice Repeal Act, and many, many more.
    In enacting the FAA, Congress sought to redirect employment 
disputes away from congested court dockets and to experts in 
employment and labor law. So, congested are these court dockets 
today, in fact, that between 2019 and 2020 the number of civil 
filings in the Federal district and Circuit court system 
increased by 40 percent.
    Judicial delay is one of the largest problems in our 
American legal system. Many of the cases that are in the system 
take more than 3 years to reach a resolution, and every study 
considering the issue has concluded that results in arbitration 
are far swifter than litigation.
    Time and again, the Supreme Court has also interpreted the 
FAA to be a liberal Federal policy favoring arbitration and has 
clarified that arbitration may be applied to antidiscrimination 
employment provisions, like sexual harassment claims and title 
VII. It routinely assumes that litigation and arbitration are 
equally acceptable methods for resolving disputes and has 
consistently so held. Data indicates that only 1 percent of all 
civil cases filed in Federal court ever go to trial.
    The basic premise of all limiting legislation--that 
arbitration is somehow unfair to or bad for employees and 
consumers is false. The evidence shows precisely the opposite.
    Empirical studies show that employees do as well or even 
better in arbitration than they do in litigation. They prevail 
at the same rate or more frequently. They recover as much or 
more through arbitration as they would in litigation. A study 
of more than 100,000 cases, the claim of employee-plaintiffs in 
court compared with arbitration show that those arbitrating 
generally recovered approximately double those in court.
    The FAA also enforces neutrality requirements for 
arbitrators. It authorizes Federal courts to vacate arbitration 
awards where there is evidence of partiality in the 
arbitrators.
    There are also remedies that exist in law to invalidate 
arbitration agreements, which protects employee-claimants when 
the balance of power has been weighted against them.
    In a study performed by economics firm Micronomics, when 
totaling both direct and indirect financial losses associated 
with choosing trial over arbitration, estimated total losses 
were calculated at approximately $28-$35 billion between 2011-
2015.
    When calculated for additional time through appeal, the 
losses rose to a skyrocketed $51-$59 billion over the same time 
period.
    Last, and most importantly, interest groups for years have 
identified arbitration clauses as untenable, in large part 
because they claim it creates confidential proceedings that 
remove bad corporate actors from the sanitizing light of 
publicity. This conflates arbitration with confidentiality 
clauses, two distinct things.
    The American Association of Arbitration in its due process 
protocols says that only the arbitrator shall maintain the 
confidentiality of the arbitration and has the authority to 
make appropriate findings to safeguard the confidentiality 
unless the parties agree otherwise. This is a duty for the 
arbitrator alone.
    In fact, neither the FAA, nor the Uniform Arbitration Act, 
imposes any duty of confidentiality on the parties to an 
agreement, the arbitrator, or the arbitration administrator, 
and is silent on the privacy of the arbitration process. These 
are contractual clauses that appear on their own.
    While the public cannot attend arbitration hearings and an 
arbitrator and arbitration administrator cannot disclose 
information about arbitration, the parties to the contract are 
under no such obligation unless they explicitly agree.
    Even in arbitrating employment discrimination claims, an 
employee can disclose the facts of the underlying dispute, can 
disclose information obtained in the process and the amount of 
any award unless they have explicitly agreed to confidentiality 
provisions. They can still report, communicate, and disclose 
the disposition of their title VII discrimination claims, as 
well as harassment, retaliation, and sexual assault claims. 
They can always communicate with Federal and State agencies, 
and they may file and pursue a claim through the EEOC or an 
investigation in the public interest.
    We do not want to protect bad actors, but these are two 
distinct realities.
    Under U.S. law, arbitration is not really a confidential 
process. It is a private process. It's not that arbitration 
clauses are dangerous, but perhaps that confidentiality 
provisions are.
    There is a culture of sexism, even predation within the 
halls of power. The Larry Nassars, the Harvey Weinsteins of the 
world, they deserve to be called to account.
    I commend the personal bravery of the women here today. 
They have been fundamental to the service of justice for not 
only themselves, but for so many others like them simply by 
sharing their stories.
    The very premise of this hearing--that arbitration keeps 
victims of sexual violence and harassment in the shadows--
suggests a solution to the problem of harassment and 
discrimination that's ultimately misguided.
    Arbitration agreements are not mandatory. No one--and the 
Supreme Court has held--is forced to sign a contract. 
Curtailing access to arbitration would injure in the end the 
very people that Congress has sought for nearly a century to 
protect. Thank you.
    [The statement of Ms. Perry follows:]
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    Chair Nadler. Thank you.
    Ms. Henry, you are recognized for 5 minutes.

                    TESTIMONY OF LORA HENRY

    Ms. Henry. I want to begin by thanking the Committee for 
the opportunity to share my story and for recognizing the 
ongoing harm that mandatory arbitration requirements have 
caused to me and countless other women who have been sexually 
harassed on their jobs.
    Without this Committee's request for my testimony, no one 
would have ever heard my story, other than the one single 
arbitrator in a closed room with a couple of attorneys.
    My name is Lora Henry, and I am a former employee of Ken 
Ganley Kia in Medina, Ohio, and this is my story.
    Like many, when I was hired, I had a mess of papers in 
front of me and was told to sign here, here, and there, just HR 
stuff, I was told. I did not know at the time that I had signed 
an arbitration agreement.
    While working at Ken Ganley Kia, my boss, Mike Gentry, 
grabbed my butt. He pinched my nipples. He repeatedly made 
comments about my body, including that he could see my vagina 
through my pants. He bragged about getting blow jobs from a 
customer in exchange for gift gas cards.
    I hope we can all agree that this is pretty disgusting 
behavior.
    I wish it ended there. It did not. On my birthday, Mike 
Gentry showed up at my house unannounced with a bag of sex toys 
as ``gifts.'' I had to tell my boss to get out of my house.
    Unhappy with this answer, he later offered to pay me for 
sex while at work, like I was some kind of whore. When I told 
him no, he tried to put the money down my shirt.
    I was disgusted. I felt alone. I did not know whether this 
had happened to other women, too. Had other victims been 
silenced with a secret arbitration?
    I found myself worried that I had offended him by rejecting 
his advances and kicking him out of my house, that I would be 
fired.
    I dreaded going into work. Every drive into work I thought, 
``Well, what will he do today?'' I would worry about how he 
would react to my choice of clothing.
    Do you know how mentally exhausting it is to be on guard 
every second for a hand that could come out of nowhere and 
pinch or grope?
    I feared that reporting this sexual harassment to Ganley 
Kia would cost me my job. Mike Gentry is the face of Ganley 
Kia's ``Mike and Darwin,'' an advertising campaign on local and 
social media. I, on the other hand, was just one of the many 
sales representatives.
    Right before Christmas 2020, Mike Gentry appeared at my 
home again unannounced. When I cracked my door open, Mike 
Gentry grabbed the door, pulled it open, and pushed his way in. 
He said he had gifts for me. My heart sank.
    He pulled his pants down and stuck a large syringe into his 
penis. It would help him get an erection, he told me. I feared 
that he would rape me right there. I screamed for him to get 
out of my house as loud as I could.
    That was it. I finally reported it, hoping that I was wrong 
and that my employer would do the right thing.
    Unfortunately, everything I had feared about reporting this 
sexual harassment came true. Ganley Kia did not take my 
complaint seriously. They conducted a sham of an investigation 
and said it was my fault. My fault? In what world is the woman 
to blame for a man showing up at her house with sex toys and 
injecting his penis.
    I now know that they felt like they could make these absurd 
attacks on me because they knew that no one, except an 
arbitrator, would hear their lame defense of a sexual predator.
    They involved their lawyers to protect the company and 
their star sexual predator who they continued to put on their 
advertising. He and the dealership retaliated against me by 
cutting off my sales leads, which took away my sales and 
commissions.
    When I still would not quit, they fired me. They just 
wanted me to shut up and go away.
    I wanted to hold Mike Gentry and Ken Ganley Kia 
accountable. I believed that if I stayed silent, he would be 
free to continue preying on women and Ganley would allow it. I 
wanted to stop him.
    So, I gathered all the courage that I could stomach and 
filed a lawsuit. They filed a motion to dismiss because of the 
``sign here, here, and there'' arbitration agreement. They 
stole my right to a jury because you allow women like me to be 
silenced by arbitration. Mike Gentry will never have to stand 
in front of a jury and explain himself.
    I cannot sit here today and tell you whether Mike Gentry 
has victimized other women. I cannot tell you whether the 
Ganley dealerships have fired other victims who complained 
about sexual harassment. I cannot tell you whether Ganley has 
systematically buried other instances of sexual assault in its 
40-plus dealerships in Ohio. I cannot tell you any of this 
because you have given Ganley the right to keep all this in the 
shadows of arbitration agreements that are buried in the hiring 
paperwork.
    What I can tell you is that the cycle of sexual assault 
will continue if you force women to be quiet and allow sexual 
harassers and the companies that allow them to hide behind 
arbitration agreements.
    This is my story, but it is also the story of countless 
other victims of sexual harassment and future unnecessary 
victims. So, I ask, do you want to force sexual predators to 
explain themselves in front of a jury, or do you want to put 
sexual harassment victims back in a little silent box so that 
people like Mike Gentry can keep being the face of Ken Ganley's 
advertising?
    This is not political. This is morality. Do you side with 
the sexual predators or their victims?
    Thank you.
    [The statement of Ms. Henry follows:]
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    Chair Nadler. Thank you.
    Professor Gilles, you are recognized for 5 minutes.

                   TESTIMONY OF MYRIAM GILLES

    Ms. Gilles. Chair Nadler, Chair Johnson, Ranking Member 
Buck, distinguished Members of the Committee, I want to thank 
you for having me back to talk about these important issues. 
It's my privilege to be here and my sincere privilege to sit 
next to these very, very brave women. Thank you so much.
    I have been here before to talk to you about how terrible 
forced arbitration is. I've talked to you before to try to get 
you to sign and enact and support a bill that would get rid of 
these pernicious clauses across the board for all employees and 
consumers.
    That's not for today, because today we don't all have to 
agree that forced arbitration is terrible across the board. 
It's terrible, but hopefully I can come back and try to 
persuade you of that on some other occasion. Because today we 
are here to talk about H.R. 4445, a bill that would prohibit 
employers from forcing victims of sexual harassment and 
violence into arbitration.
    On this, I sincerely hope we can agree. Three of the 
Witnesses have already said this is not a partisan or political 
issue, and I certainly hope that you are receptive to that very 
clear message.
    Because the truth is I can't imagine, really, I can't 
imagine how you could design a worse system for dealing with 
sexual harassment than forced arbitration. I mean, it's just 
the worst possible regime.
    First, the entire regime is shrouded in secrecy, and not 
just because victims want to keep these issues confidential--
which, by the way, is up to them, they should have the autonomy 
and the choice to decide--but because companies want to keep 
this stuff under wraps. They want to hide and shield sexual 
predators. They don't want their business in the public eye. 
They don't want to deal with regulators or even with lawsuits.
    The secrecy here, on its own, just makes this a terrible 
way to deal with sexual harassment because it means that 
victims of sexual violence in the workplace who bravely try to 
come forward are prohibited from telling their stories in a 
public forum. Instead, they're forced into this private process 
where everything is under wraps and siloed. So, this is the 
second bad thing.
    Victims can't join together, even when their injuries stem 
from the same wrongdoing, even when they have occurred at the 
hands of the same perpetrator, even when the company's 
tolerance for sexual harassment is structural and pervasive. 
Victims have to go it alone, never knowing about one another. 
They have to go into arbitration single file.
    I don't know where all these statistics are coming from how 
about great arbitration is, how people win it all the time, 
because the truth is no one goes into arbitration because it's 
siloed, because it's secret, because they don't know about what 
else is going on in the workplace.
    The secrecy that blankets these individualized proceedings 
prevents one victim from ever learning whether others right in 
the cubicle next to them might have experienced the same 
tragedies, the same traumas. When survivors are in the dark 
about cases filed by others in the workplace, that makes coming 
forward, that makes being the first person to come forward that 
much harder.
    As a corollary--and this is an important corollary--the 
relief that is available to the individual claimant doesn't 
prevent the wrongdoer from preying on other women. It doesn't 
prevent the predator from having all sorts of misconduct 
against other women in the workplace.
    The proceedings are one-on-one, and the relief that 
arbitrators are allowed by contract to grant is individualized. 
They can't ever order any changes beyond what can help this one 
individual that happens to have the courage to come before 
them.
    I mean, can you imagine a worse system for dealing with 
toxic corporate culture? Because I can't.
    Third--and I think this is really important and all the 
survivors have spoken about this--forced arbitration is a 
system where the employers write the rules and they pick the 
arbitral provider, which means that victims of sexual 
harassment are shunted into a regime that's stacked against 
them from the get-go.
    First, because the arbitrator's economic interest is to be 
very good to the repeat-player employer so that they can be 
chosen for another arbitration next time. So, the repeat-player 
problem has been well documented, and I think it's alive and 
well in arbitration and the secrecy protects that.
    Second, because the employer designs the entire arbitration 
process, it does so to serve its interests, not the interests 
of its workers, but its interests, which, again, are to keep 
discrimination and harassment under veil of secrecy and out of 
the public eye.
    So, given all these things, given how bad the system is for 
victims of sexual harassment, it's no wonder that so few ever 
decide to go into private arbitration. I wouldn't. I think it 
sounds terrible.
    Because the truth is that we can't reform this system. As 
Ranking Member Jordan expressed in his opening, that maybe this 
is a system that can be fixed, I challenge you to really find a 
way to do that because it's broken, and it doesn't work. 
Moreover, none of the victims want it. So, you can't fix it if 
it doesn't work, and I don't think it works.
    These victims deserve the right to decide for themselves 
where and how to file a case. They deserve to be free from 
retaliation for complaining about the treatment that they have 
suffered in the workplace. They deserve to tell their stories 
and to have us hear their stories, to have you hear their 
stories, and to hold perpetrators and employers accountable for 
pervasive misconduct. None of this is possible in a system of 
forced arbitration.
    So, I urge you to support and enact this bill, and I am 
happy to answer any of your questions. Thank you for having me.
    [The statement of Ms. Gilles follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chair Nadler. Thank you.
    Thank you all for your testimony.
    We will now proceed under the 5-minute Rule with questions, 
and I will recognize myself for 5 minutes.
    First , I want to thank all of you for coming before us to 
share such personal and traumatic experiences with us today. 
We're incredibly grateful. Your testimony will help save 
countless other women from being victimized in the future by 
sexual predators in the workplace.
    Ms. Spottiswoode, your attacker did not attempt to conceal 
his actions. He operated in broad daylight. You, on the other 
hand, were forced into a secret, closed-door proceeding. Prior 
to joining Afiniti, you had no idea if your attacker had 
previously acted like this toward anyone else at the company.
    Do you believe that secret arbitration proceedings endanger 
men and women in similar situations?
    Ms. Spottiswoode. Of course. Even at Afiniti, I don't know 
whether there are women there who, like me, might think that 
they are the only person that this has happened to and, like 
me, would have to wait until months into an arbitration 
proceeding to learn that there are other victims.
    Chair Nadler. Ms. Henry, I'd like to ask you a similar 
question. Your harasser also operated brazenly and without fear 
of repercussions. If there was someone at the dealership before 
you who was able to take their claims to court, do you think 
your attacker would've repeatedly harassed you after you were 
hired?
    Ms. Henry. No, sir, I do not. I feel like I wouldn't be 
sitting here today if that would've happened previously, and it 
was taken care of at that time.
    Chair Nadler Ms. Newton and Ms. Dushku, you both described 
work environments in which senior management brushed aside the 
reports of the sexual harassment you endured. In your view, how 
would prohibiting arbitration clauses from being enforced in 
cases of sexual violence and harassment reform workplace 
cultures that ignore or protect repeat offenders?
    Ms. Newton?
    Ms. Newton. I think it would send the message immediately 
that there is no tolerance for this in the court of law. They 
would know that going in: We cannot get away with this. Right 
now, they feel like it's open season.
    Chair Nadler Ms. Dushku, what do you think?
    Ms. Dushku. Short answer is accountability. I think that 
transparency and openness have to be a part of this, because 
transparency makes the perpetrators in sexual harassment 
accountable. Accountability changes behavior.
    I think in my situation, if people could have seen the 
tapes, accountability would've changed the outcome.
    Chair Nadler. Thank you.
    Professor Gilles, in the time I have left, could you 
highlight the breadth of forced arbitration's impact on sexual 
assault and harassment cases?
    Ms. Gilles. Yeah, of course.
    So, it starts at the very beginning. A woman, a victim of 
sexual harassment tries to complain about her treatment, and 
she doesn't get anywhere with HR, so she tries to file a 
lawsuit. As Ms. Henry indicated earlier--and I think her story 
is the story of so many women in this situation--she learns 
only upon speaking to a lawyer reviewing documents that she 
signed, something, somewhere that she doesn't even remember. 
None of us remember all those documents they give us to sign on 
orientation day. In there, tucked in the very deep, deep fine 
print, is a forced arbitration clause that says that you've 
waived your right to a jury, you have to go into a private 
arbitration predesignated by the employer, who has retained 
that arbitration provider, so you're not very sure how fair the 
proceeding will actually be.
    In arbitration, for this apparent speed and cheapness, we 
get very, very streamlined proceedings, so streamlined that the 
rules of discovery and the rules of evidence and other 
procedural protections that would apply in court no longer 
apply. So, right off the bat, we're just treating these people 
as though they're second-class citizens.
    When an arbitration complaint is filed, it's filed in 
secret. In other words, the only entities that know that the 
arbitration has even been filed are the employer, the 
complaining employee, and the arbitration entity of the AAA or 
JAMS or one of these arbitration providers. Nobody else knows. 
Contrast that with court. If I go down to the D.C. District 
Court today and I file a complaint, that complaint is on the 
public record, right? So, is the defendant's answer or motion 
to dismiss. All the pleadings, they're public.
    Litigation in the public court system, it has power. The 
powers it has is the power of signaling, not only to the 
defendant that I've sued, but to all similarly situated 
defendants that this is a wrong. This person has complained 
about something, she's told her story, and she plans to prove 
it.
    None of that happens in arbitration. From the beginning, it 
is private throughout the entire proceeding, which is held in a 
secret location, no public, and no press. All of it is private. 
Arbitrators don't write decisions.
    There are only three States in the Union that currently 
require minimal disclosure of arbitrations--pretty redacted and 
hard to read if you're a researcher, like I am, about these 
issues. Other than that, everything that happens in arbitration 
is a Black box.
    So, should we be surprised that women are feeling 
incredibly angry that they don't get to tell their story, that 
they don't get to know whether the place they choose to work is 
full of problems that they never learn about?
    This is overwhelmingly bad, right? This is, as I said in my 
opening remarks, I think the worst possible system one could 
design to deal with a problem of this nature.
    Chair Nadler. Thank you.
    I would ask our Witnesses to please put their masks on when 
they are not speaking.
    Mr. Chabot is recognized for 5 minutes.
    Mr. Chabot. Thank you, Mr. Chair.
    I also--it's already been mentioned, but I want to thank 
the Witnesses for being here today as well. This is obviously 
not an easy thing that it is, to testify in public like this, 
and we certainly appreciate your bravery in doing this.
    I think the behavior that's been discussed here is, 
obviously, outrageous and disgusting. Most of the individuals 
who you've been talking about on the other side ought to 
probably not only be sued or gone through arbitration, as the 
case may be, civilly but ought to be behind bars, because I 
think the behavior that's been discussed here is criminal.
    I know that, as time passes and we as a society become more 
and more educated about this and how often it occurs, we take 
it more and more seriously, as we ought to. So, again, thank 
you for being willing to be here today and to tell us about 
this. As I say, most of these guys you're talking about ought 
to be in jail.
    Now, that being said, obviously, we've had Federal 
arbitration, and there's arbitration at the State level; it's 
been around for a long, long time. It's one way to handle these 
types of things, not the only way. There obviously ought to be 
more thought given up front on both sides, about these 
contracts.
    It's disturbing that such little time is given for an 
individual like yourself, who's signing on at that employment 
early on, as to what rights they may or may not be giving up. 
So, I think that's something else we need to take a strong look 
at, is let's find out what people are actually signing.
    They tell you never sign anything unless you read the fine 
print, whether you're purchasing a car, whatever the case may 
be, and let's face it: We're all busy. They put this stuff in 
front of us, and we sign it.
    Chair Nadler. Will the gentleman yield?
    Mr. Chabot. I'd be happy to yield.
    Chair Nadler. Yeah, but isn't the whole point that these 
women and others similarly situated are given contracts to 
sign, ``Here's your employment contract, and you may not `X' 
out the arbitration clause or the NDA; take it or leave it''? 
That's what we're dealing with.
    Mr. Chabot. Yeah, reclaiming my time, I agree with that, 
and I'm saying that's something that we do need to educate the 
public, and we all ought to be involved. Yes, we've got 
Democrats and Republicans here, but this is an issue we ought 
to be united on and ought to be out there protecting women, or 
men in some cases, that are harassed either at the workplace or 
anyplace else.
    This is my 25th year in Congress, and on this Judiciary 
Committee we handle an awful lot of very important issues. Most 
of us, on both sides, have supported programs and policies to 
protect individuals and assist victims of sexual exploitation 
either in the workplace or in other places. So, I think this is 
a timely discussion of this.
    I've talked much longer than I wanted to. I wanted to get 
in a couple of questions.
    So, obviously, the two rivaling principles here are getting 
justice, certainly, for a horrific thing that this individual 
has undergone, but doing it in a manner which, with all the 
lawsuits that are filed in this country, doing it in a timely 
way and doing it in a manner where you're going to get justice.
    So, I'd like to ask Ms. St. John and Ms. Perry, you had 
mentioned--Parshall Perry--you had mentioned before about the 
time that you can get your case before the adjudicatory person, 
which in this case would be an arbitration panel. Oftentimes, 
each side picks one, and those two arbitrators pick another 
arbitrator.
    So, could you discuss that--you did somewhat in your 
testimony--about the benefits of going that route?
    Is there anything that you would suggest in perhaps the 
discussion that I mentioned about having people more educated 
up front, when they sign these employment agreements, that 
they're actually giving up their rights?
    I'd let either one of you take that.
    Ms. St. John. I think that's exactly right. Not every 
employer has these mandatory arbitration provisions. I think 
if, going in, employees know that there are employers that have 
them, there are employers who don't, maybe some are willing to 
remove them or talk through them, that would be helpful.
    Arbitration does tend to be a faster, cheaper, easier way 
of resolving disputes. That may be a way that is more 
beneficial to victims of sexual harassment and assault or any 
other workplace violation.
    Ms. Parshall Perry. Thank you for that question, 
Congressman. I would echo what Ms. St. John said as well.
    Also, we need to refocus our analysis toward 
confidentiality and NDAs. When those accompany arbitration 
provisions, that is a particularly pernicious setup. In fact, 
five States have enacted legislation that indicates, in certain 
claims, under employment discrimination law, you may not use an 
NDA or a confidentiality provision. So, you are automatically 
given the opportunity to go immediately public even though you 
are still in the arbitration process.
    I do think there's much to be said for investigating how we 
can look at the confidentiality provisions when they accompany 
arbitration itself.
    Mr. Chabot. Thank you.
    My time has expired, Mr. Chair. I yield back.
    Chair Nadler. The gentleman yields.
    Ms. Jackson Lee.
    Ms. Jackson Lee. Thank you.
    Let me thank you all for your bravery and courage. I don't 
know how many words I can offer that would equate to what you 
have done not for this Committee but for America today. Each 
and every one of these persons, in normal circumstances, 
committed a crime, should be tried and incarcerated. Here we 
are, with a mystery that most of you did not realize was part 
of your contract. That, in and of itself, is not the American 
way.
    So, I do want you to feel that you have contributed to a 
further understanding and empowerment of lawmakers to 
distinguish between what arbitration may be of value for and 
where it is wrong, ugly, and bad.
    I do want to quickly--Ms. Spottiswoode, you indicated in 
your testimony that there was another young woman who was 
harassed and assaulted on an international trip. Do you believe 
Chishti has a pattern of luring young women out of the country 
and assaulting them, which changes the whole framework of your 
legal rights?
    Ms. Spottiswoode. I personally believe that. It's 
certainly--there were a lot of similarities between what 
happened to me and the other young woman who I learned about.
    Yeah, whatever his pattern is, it won't ever be revealed if 
he can always set the rules of dispute resolution with his 
employees.
    Ms. Jackson Lee. Ms. Dushku, when Weatherly made a rape 
joke in front of the cast and crew--and I'm horrified by what 
you had to experience, film rolling, and your professionalism 
demeaned--how did that make you feel?
    Ms. Dushku. I was horrified. I was embarrassed. I was 
ashamed in some strange way. It was just incredibly demeaning.
    As somebody who had spent my life and my career 
establishing myself as sort of this strong, outspoken woman, I 
felt that it was intentionally directed at me to make me feel 
small and unable to defend myself.
    Ms. Jackson Lee. Almost taking your literal rights away as 
an independent--as an American. Thank you for that.
    Ms. Newton, do you have an impression that Louis Vuitton 
felt responsible for doing due diligence? Or did they look like 
they had concern to really do a thorough investigation of what 
you spoke about and how you were demeaned, hurt, and harmed?
    Ms. Newton. No, I don't think they had any consideration at 
all. Everything was done in a really shoddy manner with the 
intent of burying it.
    Ms. Jackson Lee. Ms. Henry, do you think the actions of 
your perpetrator should have really put him into the criminal 
justice system?
    Ms. Henry. Yes, ma'am, I do. The way things are there now, 
it's just a big secret. They can pay some money to the victim 
and move on and not even warn the next person that this may 
happen to. So, yes, I don't feel like justice has been--
prevailed here at all.
    Ms. Jackson Lee. Professor Gilles, thank you for the 
research that you have done. You've heard the pain of these 
women and how, I believe, these allegations against these 
perpetrators would really throw them into the criminal justice 
system. Obviously, one incident happened out of the country.
    Can you tell us how these incidences are, in fact--this 
policy presence, with arbitration, the implications of what 
they have for justice, or injustice now, in America?
    Ms. Gilles. I think that you're hearing today the 
implications are significant. We have a group of incredibly 
strong women who were demeaned in the workplace. I think that 
that's injustice right there. I think it gets worse and worse.
    So, my colleagues on the right have argued that courts are 
too busy, dockets are too full, and that's the reason to shunt 
these cases into arbitration, where they can allegedly be dealt 
with cheaper, faster, and easier. I just want to point out 
that, first of all, they're not being dealt with cheaper, 
faster, and easier; they're not being dealt with at all. Very 
few victims ever decide to go into arbitration.
    So, the company line that the Chamber of Commerce likes to 
feed us, or some of us, is just false. So, that means that 
there's deep injustice and that we have a two-tiered system, 
right? We have a system for big companies, who get to go to 
court, and then we have a system for victims, who have to be 
forced into arbitration.
    I'd also just say as an aside, if there really is a 
question about whether court dockets are too full, then this 
body should just appoint more judges, right? The way to deal 
with that problem is not to force people into a system that 
they don't want, they don't need, and is deeply unfair, but, 
instead, it's to just appoint more judges.
    I also think, Representative Lee--I think this is an 
important point, and it'll be my last point. There's a deep 
problem and an injury that happens to the law itself when cases 
are not brought in public courts and are docketed on the public 
system. We lose something. We lose something about what makes 
this country great, which is law. Law has to have people, 
inputs, to develop, to move forward, and to evolve. Right now, 
a lot of cases are not getting before judges. They're not 
hearing those cases. What happens is that law itself starts to 
stagnate.
    So, I think the harms are cascading. They're multiple; 
they're deep. It's time to put them to an end.
    Ms. Jackson Lee. Thank you.
    Chair Nadler The gentlelady's time has expired.
    Let me just say, Ms. Gilles, that, regardless of the topic 
of this hearing, I think you'll find considerable bipartisan 
support on this Committee for increasing the number of judges.
    Mr. Jordan.
    Mr. Jordan. Thank you, Mr. Chair.
    Ms. Parshall Perry, we've got a markup on this tomorrow. It 
sounds like--Ms. Gilles just talked about public this 
information being public, and these courageous individuals who 
came and shared their stories, that information being public. 
You indicated with Mr. Chabot that you felt the answer to this, 
to protect the benefits of everything here, the benefits of 
all, was to deal with the nondisclosure, confidentiality. You 
think that's the answer?
    Because, like I said, tomorrow, we're going to be actually 
potentially passing this Bill out of the Committee, moving it 
to the House floor, and we'd like to do it right that's going 
to treat people who've had to go through the terrible things 
they've had to go through, we'd like to treat them the right 
away.
    Ms. Parshall Perry. Thank you for that question, 
Congressman.
    I do believe confidentiality and those provisions that 
attach so often to arbitration agreements are precisely the 
problem that we're dealing with in the first place. The 
opportunity for individuals who are signing employment 
contracts to truly understand that what they'll go through may 
not ever see the light of day--the explanation--I almost wonder 
if there ought to be some disclaimers that we investigate, that 
if those particular claims are given an opportunity to be 
arbitrated, like any other employment claim, any other 
discrimination claim, anything in employment and labor, that 
there is attaching language saying that we will not utilize 
nondiscrimination--or nondisclosure agreements, confidentiality 
provisions, so that immediately upon entering arbitration the 
process itself is not private and it is not kept behind closed 
doors.
    Mr. Jordan. Yep.
    Ms. Parshall Perry. There are protections in the Federal 
Arbitration Act that make note of the fact that there are no 
confidentiality provisions. The American Arbitration 
Association focuses singularly on the arbitrators, the goal 
being to protect privacy during negotiations, but it will be 
very long before those individuals and their claims actually 
see the light of day. I do think confidentiality is an issue.
    Mr. Jordan. Thank you.
    I'm going to yield to the Congressman, or maybe Attorney 
General, of Texas the remainder of my time.
    Mr. Gohmert. Thank you.
    Ms. Spottiswoode, sorry for not knowing, but your attacker, 
did he ever face criminal consequences?
    Ms. Spottiswoode. No. As far as I know, he's still the CEO 
of this company. I--yeah. In fact, I'm very much afraid of what 
will happen after this hearing.
    Mr. Gohmert. Well, that could well be a crime, if some 
retaliation is brought to bear against you. Now that you are 
public, please don't keep future crimes private. You know, 
you're out there. Might as well follow up.
    The law-and-order side of me says somebody that attacks 
anybody like you were attacked needs to be responsible to the 
criminal justice system, not just keep it private, but it needs 
to be dealt with in a criminal court.
    I, also, wonder if that might be something, whether it's 
sexual assault, anybody that has a crime committed against them 
shouldn't be limited to arbitration. It looks like you ought to 
be able to pursue that.
    Perhaps, Ms. Gilles, I understand what you're saying, but 
in my time as a prosecutor and as a judge, sometimes we have 
women that really don't want to come forward. A side of me 
wants them to come forward, but--
    Ms. Gilles. Then they shouldn't.
    Mr. Gohmert. I know you've dealt with that--
    Ms. Gilles. We're on the same page. I just think they 
should have a choice.
    Mr. Gohmert. Exactly.
    Ms. Gilles. So, I'm with you right?
    Mr. Gohmert. Yeah. Yeah.
    Ms. Gilles. They shouldn't be forced into a system they 
don't want.
    Mr. Gohmert. Just because somebody's part of a labor union 
doesn't mean they ought to be forced into arbitration either, 
right?
    Ms. Gilles. We're not here to talk about labor unions. 
That's a whole other hearing.
    Mr. Gohmert. Oh, yeah, but that's an exception.
    Ms. Gilles. An exception to what?
    Mr. Gohmert. Labor unions will be able to negotiate 
arbitration agreements. So, it is something to discuss. You may 
not want to discuss it.
    Ms. St. John, how do you feel about exempting out 
agreements made by labor unions from whatever law gets passed?
    Ms. St. John. Well, I think it's inconsistent with the 
principles involved. If arbitration's okay for some claims, it 
should be okay for all claims. Same with--whatever process is 
available, it shouldn't be restricted based on whether an 
employee is in a union.
    Mr. Gohmert. Well, I can sure see, with a sexual assault, a 
need to give that choice to the victim after it happens and not 
agreeing before it happens.
    So, I appreciate all of you being here, appreciate your 
sensitivity, and will look forward to dealing with this as a 
legislative matter.
    Thank you. I yield back.
    Chair Nadler. The gentleman yields back.
    Mr. Johnson.
    Mr. Johnson of Georgia. Thank you, Mr. Chair.
    Ms. Parshall Perry, I've got legislation that would expand 
the United States District Courts by creating 203 additional 
judgeships. Do you believe that would create efficiencies that 
would enable more women to be able to bring cases of sexual 
assault in a Court of Law instead of in arbitration?
    Ms. Parshall Perry. Congressman, I think my primary concern 
would be filling the vacancies we currently have. Until we can 
get that figured out, I'm not a fan of expanding, unilaterally, 
the judiciary. I think that's a problematic avenue to pursue.
    Mr. Johnson of Georgia. All right. Thank you.
    If we could fill the vacancies, though, it would be great 
for justice in America. Isn't that correct?
    Ms. Parshall Perry. If we could fill the vacancies, yes, 
absolutely.
    Mr. Johnson of Georgia. You have given up on the Senate 
being able to confirm judges?
    Ms. Parshall Perry. I have not. I do believe the Senate is 
still capable of following its edicts and making sure that 
those vacancies are filled. Before we go adding judges, let's 
fill the vacancies that we have first.
    Mr. Johnson of Georgia. All right. Thank you.
    Ms. Spottiswoode, the incident that you told us about that 
gave rise to the pictures that you have submitted into the 
record, that incident took place beyond the shores of America; 
is that not correct?
    Ms. Spottiswoode. That's right. Multiple times that I was 
assaulted it was on international trips.
    Mr. Johnson of Georgia. Probably to keep you from being 
able to file a criminal action against Mr. Chishti, correct?
    Ms. Spottiswoode. Perhaps.
    Mr. Johnson of Georgia. Yeah.
    Professor Gilles, we've got this nasty little thing called 
Amendment 7 to the Bill of Rights. Can you talk to us about how 
important the Seventh Amendment is to the freedoms that were 
guaranteed to individuals under the Bill of Rights?
    Ms. Gilles. I can.
    The Seventh Amendment right is so fundamental. I teach law 
school, and right now I'm teaching civil procedure, for those 
of you who went to law school. In civil procedure, our entire 
course really focuses on this moment when we're going to get to 
a jury, right? We talk about the pleadings and discovery and 
all the pretrial process. The idea is that the jury is going to 
be the final determiner.
    Now, very few cases end up in juries anymore, less than 2 
percent by recent numbers. Representative Jordan mentioned how 
few cases get to a jury. That is still our idealized vision of 
justice.
    So, the idea that one would waive the right, the Seventh 
Amendment right, in a contract where you're not even paying 
attention to the things you're signing, you're not reading the 
fine print, you're not understanding the fine print and despite 
these discussions about disclosures or disclaimers, none of 
that's going to do any good, because, frankly, when you first 
get a job and you get that packet of material, you're so 
excited to start your job. I mean, I'd sign just about 
anything, because that's the job I want, right?
    Mr. Johnson of Georgia. That's why we call it ``forced'' 
arbitration.
    Ms. Gilles. That's why we call it ``forced'' arbitration. 
No disclaimer in the world will sufficiently make me worried 
about the rights that I'm giving up, because I'm at the 
beginning of the relationship. I'm not thinking about the end 
of the relationship yet, right?
    Mr. Johnson of Georgia. There's a power disparity between 
the employer and the prospective employee when it comes to the 
papers that need to be signed.
    Ms. Gilles. Yeah. Yeah.
    Mr. Johnson of Georgia. Does the employee actually have a 
choice?
    Ms. Gilles. No, no choice at all. That is why we call it 
``forced'' arbitration.
    Mr. Johnson of Georgia. That arbitration process you talked 
about being so secret--and we've heard questions or 
insinuations that locations for arbitration proceedings are not 
secret. Can you shed a little light on that?
    Ms. Gilles. I can't because they are secret, so I can't 
shed any light on it.
    Mr. Johnson of Georgia. There's no notice?
    Ms. Gilles. There's no notice. They're not publicly 
docketed, Representative Johnson. We have no idea where they 
take place.
    Mr. Johnson of Georgia. So, the public doesn't have an 
opportunity--
    Ms. Gilles. No, the public or press. None of these 
documents is available for any publicity.
    Mr. Johnson of Georgia. How--and let me interrupt you.
    Ms. Gilles. Yeah. Sorry.
    Mr. Johnson of Georgia. How does this secrecy play into the 
serial offenders, the predators that keep doing this time after 
time? How does secrecy enable them to do that?
    Ms. Gilles. Because it enables employers to shield them 
from any publicity, right? It keeps them on, right? They're 
still CEOs of companies. They're still heads of FOX News.
    For years and years and years they engage in this activity. 
They're serial sexual predators in the workplace, and because 
each arbitration is private, nobody knows about the past issue. 
So, new women join these companies, and they have no idea 
what's been going on. It takes a lot for these women to finally 
come forward, as we're seeing today.
    Mr. Johnson of Georgia. So many broken lives. You ladies 
who have appeared today have shared your life story with us--
bravery, tenacity, and survival. You are wonderful people. I'm 
sorry that you went through what you had to go through. I 
appreciate you all coming and sharing your story with us today 
so that everyone can hear.
    Thank you.
    I yield back, Mr. Chair.
    Chair Nadler. The gentleman yields back.
    Mr. Issa.
    Mr. Issa. Thank you, Mr. Chair.
    I'm going to start off with a question. Hopefully I can get 
a hand raise if it's a ``yes.''
    Would all six, including our remote visitor, or Witness. 
Would all six of you agree--I'm sorry, I've got to get my count 
right--seven of you. Would all seven of you agree that, in 
fact, if nondisclosures were taken out of the binding 
arbitration process in the case of assaults, that this would be 
an improvement in the status quo?
    Those who agree, raise your hand.
    Okay. I get three out of seven.
    So, let me just ask you now, yours is a case of a criminal 
attack outside the United States, and you were not bound by a 
nondisclosure, because you didn't go through the process. Is 
that correct?
    Ms. Spottiswoode. I had a nondisclosure in my original 
employment contract.
    Mr. Issa. Did you go through binding arbitration?
    Ms. Spottiswoode. Yes.
    Mr. Issa. At the end of binding arbitration, they 
compensated you for this wrongdoing in some way, and you, thus, 
were bound by a nondisclosure?
    Ms. Spottiswoode. I was bound by a nondisclosure before I 
even got to arbitration. I was compensated because I won my 
arbitration, which is so unusual because it's so--
    Mr. Issa. Okay. So, I just want to go through, why is it 
you think that taking that out wouldn't be an improvement? I 
didn't see your hand rise.
    Ms. Spottiswoode. Because secrecy isn't the only problem 
with forced arbitration.
    Mr. Issa. No, no. That isn't--
    Ms. Spottiswoode. It's also very unfair
    Mr. Issa. That isn't the question.
    Ms. Spottiswoode. I'm sorry.
    Mr. Issa. I understand you want more.
    Ms. Spottiswoode. Yeah.
    Mr. Issa. I want to get an answer to a critical part of the 
deliberative process here.
    I've been hearing, and I think accurately--I'm going to ask 
you one more time, because a victim is the best person to ask, 
to a great extent.
    If you had been able to tell your story not bound by a 
nondisclosure, would that have been better than being bound by 
one? That was the only question. Not does it make the system 
perfect, but would it be an improvement?
    Ms. Spottiswoode. It just sounds like I'm being offered a 
half-measure. The forced arbitration is so unfair--
    Mr. Issa. Okay.
    So, I understand; you think forced arbitration is unfair. 
That's great. Most of the people on that side want to eliminate 
it for everything, not just situations like--
    Mr. Cicilline. Will the gentleman yield for a question?
    Mr. Issa. I will not. The reality is, your side's been 
running over by a minute, and I won't be given the same 
opportunity.
    So, down to our two Witnesses on the left here. You raised 
your hand and said, yes, that getting rid of that would be 
helpful. In a sense, doesn't that eliminate what we heard in 
testimony as to the actual injury?
    Almost everyone of our Witnesses was talking about the 
effects of secrecy, not the effects of the actual binding 
arbitration.
    Please.
    Ms. Parshall Perry. Congressman, I would agree with you. I 
do believe, if we are going to institute piecemeal separations 
of particular claims in arbitration--which, as you rightly 
noted, is just another attempt to try to eviscerate the FAA, 
which for 30 years has been upheld by the Supreme Court as 
being as good as litigation, even including discrimination 
claims.
    In this particular instance, if we are talking about sexual 
assault and sexual harassment and confidentiality is the 
primary concern, I would think language like that would solve 
the problem.
    Mr. Issa. That's what I've heard, and that's why I was 
asking.
    Additionally, when I read the legislation, we'll be 
considering tomorrow, it puts a definition of ``sexual 
harassment.'' Is there a definition similar to this, as far as 
you know, in the statute today that defines ``sexual 
harassment'' in the way this one is defining it?
    Ms. Parshall Perry. No, there is not.
    Mr. Issa. Okay. So, this would be not just about 
arbitration. This would be a new law that defines ``sexual 
harassment,'' at least in the workplace, in a brand-new way 
with a single hearing.
    Ms. Parshall Perry. Correct.
    Mr. Issa. Okay.
    The second one is a big one for me, and it hasn't been 
talked about here today. Under HIPAA, you can't talk about 
something that happens to somebody medically. If someone is 
raped, you can report it as a crime. As a matter of fact, if 
you're a healthcare professional, you're required to.
    Should we, with this power, in fact make it to where the 
arbitrator or anyone else who becomes aware of the allegation 
of a crime which is credible be required to report it? Would 
that, too, eliminate some of what I think we heard today 
validly as a problem of binding arbitration?
    Ms. Parshall Perry. Absolutely. Arbitrators are supposed to 
implicitly and explicitly protect the privacy of negotiations, 
but when a crime has been committed, they absolutely ought to 
have to report it.
    Mr. Issa. Well, our Witness alleged a crime. Was that 
arbitrator wrong in not reporting that crime?
    Ms. Parshall Perry. Absolutely.
    Mr. Issa. Okay.
    Thank you, Mr. Chair. I yield back.
    Chair Nadler. The gentleman yields back.
    Mr. Cicilline is recognized.
    Mr. Cicilline. Thank you, Mr. Chair.
    I want to begin by just thanking the four survivors who 
have come forward to share their stories to this Committee and 
to the country. I know this is not easy, but I hope you know 
that your testimony will help us solve this problem by moving 
forward with legislation to fix this problem.
    So, hearing those experiences was painful to listen to; I 
can't even begin to imagine what it was like to experience 
them. They were horrific, and I am in awe of your courage, all 
of you, for being here today and sharing your stories. So, 
thank you for that.
    I want to first just ask a ``yes'' or ``no'' question. Ms. 
Parshall Perry made it sound like these forced arbitration 
clauses are so great everyone just wants them. People, of 
course, if that were true, they wouldn't be called ``forced'' 
arbitration, they wouldn't be hidden in an employment contract, 
and you would all know about it, and you'd be asking for them. 
Of course, that's not the truth at all.
    So, my question for each of the survivors is, did your 
employer at any time when you were hired point out to you what 
was contained in your contract with respect to forced 
arbitration? You can just answer ``yes'' or ``no.''
    Ms. Spottiswoode. No.
    Mr. Cicilline. Ms. Newton?
    Ms. Newton. No.
    Mr. Cicilline. Ms. Henry?
    Ms. Henry. No.
    Mr. Cicilline. Ms. Dushku?
    Ms. Dushku. No.
    Mr. Cicilline. So, in each of these cases, you had 
employment contracts that had provisions that you didn't--the 
employer made no effort to have you understand you were 
actually giving up this very important right to have any claims 
heard.
    I'd like to begin, Ms. Dushku, with you. If you could just 
speak a little bit about what the effects of your experience 
were. Your inability to speak about what had happened to you, 
how did that play out on the set where you worked, and how did 
it affect you in your life, both in your profession and just in 
your personal life?
    Ms. Dushku. I would say that ``sunlight is the best 
disinfectant.'' The inability to name something sort of 
increases the gaslighting around did this happen, is this 
appropriate, was this not appropriate, taking away our ability 
to share with our peers, our team, the systems, and the people 
that are supposed to be protecting us.
    As I've learned from my own experience and even in my 
graduate studies around trauma and healing, there's the 
original--we're as sick as our secrets, as the saying also 
goes. There's the original offense of the crime, but then to 
add the silencing on top of it, it just kills your spirit, and 
it just takes your dignity.
    As I've said, as somebody who's been known to be outspoken 
and speak up for others in the face of adversity, I can't 
describe what the last 4 years have felt like, to get nervous 
to go to a family dinner and speak to one of my own siblings 
about what I had experienced. The silencing keeps us sick as 
individuals, as a society, and in our overall culture.
    Mr. Cicilline. Thank you.
    Ms. Newton, you described how Members of the legal team at 
Louis Vuitton, including your direct supervisor and the general 
counsel, attempted to really brush aside your reports of the 
sexual harassment that you experienced. Do you think that 
contributed to the culture where sexual harassment is allowed 
to flourish, and victims are silenced?
    What role do you believe that arbitration clauses--what 
role do they play in terms of individuals not knowing they're 
going to be held accountable in any meaningful way?
    Ms. Newton. Right. So, when I first went to my colleague--
because I'm part of the legal team myself, and told him about 
what was happening, it was first ignored. Then later, when I 
became insistent about it, I was told, ``Well, I'm not HR, so I 
can't report this.''
    When things escalated and I filed the written report and I 
told my boss, the General Counsel, ``This isn't being handled 
properly, and it needs to be,'' she asked me, ``Have I done 
something to wrong you?'' In other words, I was reporting this 
to bother her. It was a bother; it was a disturbance.
    So, if I, as an attorney within this company, was basically 
shunned, dismissed, at every single turn and basically told, 
``You're a nuisance to us,'' by raising these claims of sexual 
harassment, I can't imagine what the marketing manager goes 
through, the intern goes through, or someone else. So, it 
creates this culture of, ``Don't bring this to us, we don't 
want to hear it, we don't want to deal with it.''
    Mr. Cicilline. Yeah. Thank you.
    I just want to say in closing, the suggestion that we 
should wait until these incidents rise to level of crimes so 
that people can just report the crime, as if that's a solution, 
there's an enormous amount of behavior at issue here which may 
not, in fact, rise to a level of a crime that women and all 
individuals should be protected against in the workplace.
    This is despicable behavior, and to the extent that we 
allow individuals responsible for this conduct to get away with 
it by these forced arbitration clauses, we should be ashamed of 
ourselves. We're going to fix that tomorrow.
    With that, Mr. Chair, I yield back.
    Chair Nadler The gentleman yields back.
    Mr. Gaetz.
    Mr. Gaetz. Thank you, Mr. Chair.
    Ms. Parshall Perry, you mentioned in your testimony that it 
was the progressive leadership in the House and the Senate 
that's pursuing these changes to arbitration. I would just note 
for the record, they aren't alone. No one has confused me for a 
progressive, and I'm a proud Republican lead on Mr. Johnson's 
good legislation to reform these practices. I don't think this 
is a lens that we should evaluate through traditional political 
ideology.
    You did cite some data that I wanted to delve into. You 
said that, in arbitration, the amounts awarded were double that 
of the traditional litigation process. What is that study?
    Ms. Parshall Perry. That's a study by NDP Analytics. They 
approached an analysis of 100,000 cases. That was a study that 
was done in 2004.
    Mr. Gaetz. Did it analyze win rate, or just the amount 
awarded?
    Ms. Parshall Perry. I don't know. I'd have to go back and 
look at the study.
    Mr. Gaetz. I think you could be misleading to cite just the 
amount awarded in absence of looking at the win rate. So, I did 
a little research on that subject that postdates the research 
you've cited.
    Mr. Chair, I seek unanimous consent to enter into the 
record a study by the Economic Policy Institute, December 7, 
2015, entitled ``The Arbitration Epidemic.''
    Chair Nadler. Without objection.
    [The information follows:]
  

                        MR. GAETZ FOR THE RECORD

=======================================================================

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Mr. Gaetz. I'll just use my time to analyze that point of 
win rates. This is quoting from the study:

          ``Employee win rates in mandatory arbitration are 
        much lower than in either Federal court or State court, 
        with employees in mandatory arbitration winning only 
        about a fifth of the time, which is 59 percent as often 
        as in Federal courts and only 38 percent as often as in 
        State courts.
          ``Differences in damages awarded are even greater, 
        with the median typical award in mandatory arbitration 
        being only 21 percent of the median award in Federal 
        courts and 43 percent of the median award in State 
        courts.
          ``The most comprehensive comparison comes when we 
        look at the mean or average amount recovered in damages 
        across all cases, including those in which the employee 
        loses, and zero damages are awarded. When we make this 
        comparison, we find that the average outcome in 
        mandatory arbitration is only 16 percent of that in 
        Federal courts and 7 percent of that in State courts.
          ``Mandatory arbitration is massively less favorable 
        to employees than are the courts.''

    Are you persuaded that this evidence that postdates your 
study might inform on that analysis?
    Ms. Parshall Perry. It may. I am aware of the EPI study. 
That was a 2018 study.
    I am also aware that there are connections between trial 
lawyers and the plaintiffs' bar and the EPI, who are, 
themselves, incent-
ivized to make sure that cases are brought to litigation--
    Mr. Gaetz. Very important point. Are there any connections 
between NDP Analytics and the business community?
    Ms. Parshall Perry. There may be.
    Mr. Gaetz. Okay. So, I think we'd have to acknowledge that.
    Eliza, I wanted to turn my remaining time to you.
    I heard a colleague share with me a story of someone coming 
to them who took a job that was also an on-camera job, and that 
person was harassed and forced into arbitration and had a 
negative consequence there, deprived of their day in court.
    My colleague in Congress asked that person who visited with 
them, would you have done it again? Would you have taken the 
job, and would you have signed that mandatory arbitration 
clause, knowing what could happen?
    Upon reflection, that woman said to my colleague, ``You 
know what? I wanted the job so bad--I craved this opportunity. 
It was my break in life. Even though I was mistreated, even 
though I was harassed and abused, I'd probably do it again.''
    Hearing that was heartbreaking to me, that in our country 
we would create conditions that force anyone into a 
circumstance like that.
    Looking at the opportunity you had that most people would 
do just about anything on the planet Earth for, would you do it 
again?
    Ms. Dushku. No. I can't knowing what I now have come to 
know. So, as far as my career since then, I've chosen not to 
Act professionally or in any other way, because I would never 
sign away my rights again. My understanding is that these 
provisions are part of most Hollywood contracts at every major 
studio. They're a take-it-or-leave-it deals. There's no price 
for my dignity and my rights.
    Mr. Gaetz. I really appreciate that perspective, but it 
just seems like such an abhorrent choice to put to anyone in 
the American workforce. You basically have to accept this 
contract of adhesion, or you have to deprive yourself of the 
most meaningful contribution you can make to the workforce and 
to the country.
    I thank the Chair, and I yield back.
    Chair Nadler. The gentleman yields back.
    Ms. Bass.
    Ms. Bass. Thank you, Mr. Chair.
    Let me just take a minute to thank the Witnesses for being 
here. I can only imagine how difficult it is for you to share 
your stories, but just want you to know how important it is 
that you've had your day but also to educate us.
    I wanted to ask Professor Gilles several questions.
    I wanted to know if she could explain how the power dynamic 
between a prospective employer and an employee affect the 
validity of the arbitration clause in an employment contract. 
Or, put another way, what makes it forced?
    One more question to you: Many Americans don't know what 
arbitration is, and many litigants have no idea they've signed 
an arbitration clause. How does this use of fine print and 
opaque wording add to the coercive nature of many employment 
arbitrations?
    Ms. Gilles. Thank you. I'm happy to answer those questions.
    So, first, on the power dynamics, which we've talked about 
a little bit already at today's hearing, and, frankly, 
Representative Gaetz just put it really well. I think the truth 
is that we want the job, we want the opportunity so badly that 
we are willing to sign away a lot of things to have that 
opportunity and to assume at the start of a relationship that 
everything will go pretty well.
    So, I think the power dynamic exists. I think it's a 
structural imbalance that is always true in employment. I think 
employers are taking advantage of that structural imbalance by 
forcing their employees into arbitration.
    On your second question, which is very related, I don't 
know if you've read an arbitration clause--I will try to send 
one so that you have one in the record--they are incredibly 
opaque. Even as a lawyer, I read them, and I have to reread 
them and reread them again to understand exactly what it is 
they're trying to do.
    Maybe employers shouldn't be blamed for how opaque they 
are, because, after all, what they're trying to do is rewrite 
an entire procedural system, because they're foregoing the 
procedural system that we've already established in our courts 
and doing that takes a whole lot of time and energy, especially 
if you're just trying to maximize your interests.
    So, these are really opaque and difficult to read. They 
often take pages and pages to describe. I think most people 
don't read them or certainly don't understand them if they try 
to read them. So, all of this is part of the problem.
    Ms. Bass. Well, actually, can you take a few minutes to 
walk us through the history of arbitration in employment 
contracts? Why has this practice been allowed to continue?
    Ms. Gilles. Thank you so much for that question, because 
I've been hearing things today that are making my blood boil a 
little bit.
    The FAA was enacted in 1925, but it was enacted so that 
sophisticated businesspeople could negotiate for arbitration 
provisions and those provisions would be respected by courts. 
It was never intended to be imposed via standard form contract. 
In fact, if you read the legislative history, if you read the 
legislation, it excepts and exempts employees.
    So, the idea that the FAA applies to employees is something 
that was created by a conservative majority of the Supreme 
Court in 1991 in a case called Circuit City--I'm sorry. First, 
actually, was Gilmer and then Circuit City. I can't keep all 
the bad cases straight.
    Those are the cases in which the Court interpreted--I would 
say misinterpreted--the FAA to apply to employees like this, so 
that, now, employers can just stick these clauses into job 
applications and orientation materials. Even an innocuous email 
from HR can include a forced arbitration clause.
    That was not what the 1925 Congress intended. They should 
be rolling in their graves. This is not what they intended. 
This is what a Supreme Court intent on protecting corporations 
intended beginning in the 1990s.
    So, all I can tell you, Representative, is that from the 
1990s until now we've just had worse and worse opinions. In 
2018, the Supreme Court decided a case called Epic Systems, 
where it basically threw the NLRA under the bus and said that 
the FAA is more important than the right to collective action 
under the National Labor Relations Act.
    A term later, in Lamps Plus v. Varela, the Court helped an 
employer who apparently couldn't write a cogent arbitration 
clause and sort of said, ``Hey, we got what you meant, you 
meant that your employees can't bring class actions, we'll help 
you out there,'' and basically rewrote the agreement.
    They will do anything, this five-member majority of the 
Supreme Court, to enforce these arbitration clauses because it 
protects Big Business.
    I think that's not what this body should be doing. This 
body should be protecting these women and other women like 
them.
    Thank you.
    Ms. Bass. Thank you.
    My time's expired.
    Chair Nadler. The gentlelady's time has expired.
    At this time, the Committee will take a very brief, 5-
minute recess.
    [Recess.]
    Chair Nadler. The Committee will come to order.
    At this time, I recognize Mr. Biggs for 5 minutes.
    Mr. Biggs. Thank you, Mr. Chair.
    I appreciate every one of our Witnesses being here today. 
For some of you it just can't be a really easy experience, and 
appreciate your willingness to be here and share your 
experiences with us.
    I am sincerely trying to understand this bill and whether 
it is the appropriate measure or whether it could be better or 
how to design it. So, my questions are meant sincerely trying 
to get a handle on this.
    I was a litigator, and I tried lots and lots and lots of 
cases, everything from arbitration to jury trials at every 
level. So, I have a lot of experience in this area. So, I've 
broken this down in my own mind. I think Mr. Issa was trying to 
get there. I am trying to make sure I understand it. There are 
three aspects of this bill that I think are interesting to me.
    Number one is the nature of arbitration in and of itself. 
My experience as an arbitrator, it's a very small sample size, 
but it was very unsatisfactory as an arbitrator. There was 
pressure on me as an arbitrator from the side that appointed 
me, and that was very, very uncomfortable for me.
    On other cases, where I was the attorney representing a 
plaintiff before the arbitrator, in some cases it was 
extremely--it was quick. It was short. It was easier. It was 
faster. Our reward was better than we had anticipated.
    So, the question, of course, is the arbitration itself, is 
that really the issue? The forced aspect of this, the contract 
of adhesion aspect, that seems to be a huge problem here. I am 
a big advocate for--I hate to be forced to do anything, and I 
hate for people to be forced to do things. So, this contract of 
adhesion type of aspect is really disturbing to me.
    Yet, at the same time, I'm a big believer that people 
should be allowed to enter into contracts, but I also 
understand there's a power discrepancy. So, we are trying to 
resolve that issue here as well.
    Then the third thing for me is the transparency or lack of 
transparency or the nondisclosure or the secretive nature of 
these types of arbitrations.
    So, Mr. Issa was trying to get at--and I don't want to 
steal what he was doing--this notion of, if you had 
transparency, if this were open and notorious, and you could 
bring it forward, would that resolve some of the problems? I 
think you said yes.
    Professor Gilles, you indicated that might be helpful in 
some. You did not? You don't think transparency would be.
    Ms. Gilles. The issues are that you're trying to fix a 
system by making it as close to court as possible. I guess I'm 
wondering, why don't we just let these women go to court? I 
don't understand--
    Mr. Biggs. So, don't get ahead of me.
    Ms. Gilles. Yeah.
    Mr. Biggs. I'm trying to understand the three components 
I've raised here.
    Ms. Gilles. Right.
    Mr. Biggs. So--
    Ms. Gilles. You're saying that if we could make everything 
transparent. So, maybe if you could tell me--
    Mr. Biggs. No, I'm not saying that. What I'm saying is 
would transparency improve--
    Ms. Gilles. Transparency of what? Why don't we try to--
    Mr. Biggs. The arbitration itself.
    Ms. Gilles. The entire thing, so from the filing of the 
complaint, through the arbitration, through the award, the 
appellate process, and the confirmation in court, all this 
should be transparent?
    Mr. Biggs. Sure. Right.
    Ms. Gilles. Okay. Then I just have to ask you, 
respectively, what's the difference between that and court?
    Mr. Biggs. First, the difference is--I'm sure you have 
litigated cases. It's huge.
    Ms. Gilles. Okay. You know, the thing is--
    Mr. Biggs. A case in an Article III Court can take 
boundless amounts of time and boundless amounts of discovery.
    Ms. Gilles. Yeah.
    Mr. Biggs. You have discovery in arbitration, but it moves 
so much quicker. It really does. That's been my experience.
    So, when I'm talking about transparency and you're saying, 
well, you're building a whole new system, that whole new system 
has been in place for a hundred years.
    Ms. Gilles. It has been in place for a hundred years for 
big commercial sophisticated companies. When you're an attorney 
arbitrating your case, Representative, just answer me this: 
Weren't you representing a company arbitrating against another 
company.
    Mr. Biggs. No. No, absolutely.
    Ms. Gilles. Oh, really? An individual?
    Mr. Biggs. Yes, absolutely, individuals against 
individuals.
    Ms. Gilles. Okay.
    Mr. Biggs. In my home State, that's not an unusual thing. 
That's my point. That's my point, is you're--and now we've 
taken too much time just getting to that.
    I'm just trying to understand bit and bit and bit how we 
can improve a system, so we protect victims. Because no one 
should have to make the decision--I agree with Representative 
Gaetz--nobody should have to make the decision about whether 
you're going to be compelled to find a certain dispute 
resolution or take the job of your dreams.
    I mean, that is really is what I'm trying to get at. I 
think there was some kind of defensiveness on your part, and 
it's unfortunate, because I really wanted to understand the 
transparency part of it and lack of it.
    I have to yield back because my time is up.
    Chair Nadler. The gentleman yields back.
    Mr. Cohen.
    Mr. Cohen. Thank you, Mr. Chair. I appreciate your holding 
this hearing today. I'm sorry I was late, but my car did not 
start. It does that on occasion.
    I thank you and all the Witnesses for being here and 
testifying before the committee, some with some personal 
difficulty, but I appreciate your willingness to come forth and 
put color on this issue.
    It's truly sad that we have to even have a hearing. 
Arbitration is an issue that has come before this Committee in 
other instances. I'm against forced arbitration, but I can 
understand it in certain issues. When you have forced 
arbitration, where you have to deal with forced actions by your 
employer on you, then you have forced arbitration, that's what 
they call a hat on a hat. You don't do a hat on a hat. It's 
doubly bad.
    So, I appreciate your being here.
    Today's Witnesses and countless others have been sexually 
harassed or violated by people who thought they could get away 
with it because they were the boss and the boss gets whatever 
the boss wants.
    Especially if they have forced arbitration, they know about 
it. Sometimes you don't because you don't get into the 
contract. You want the job. You don't get into the nitty-gritty 
and the details, and I understand that. You have no choice. 
It's an adhesion contract. You get the job, or you don't.
    So, you take it, and you expect you're not going to have 
that kind of conduct anyway, so it's no big deal. Then you have 
the conduct. They know they have got the forced arbitration, 
and so they feel comfortable harassing you because they know 
that they've got this forced arbitration and they're going to 
come out the winner. They have got the deck is stacked in their 
favor.
    Professor Gilles, the structure of forced arbitration 
allows perpetrators to operate this way. Could you walk through 
for me the difference between the traditional legal system--you 
might have already done this while I was under my hood--and 
then forced arbitration?
    Ms. Gilles. I'm sorry, I didn't hear the question. Sorry.
    Mr. Cohen. I said the primary difference between the 
traditional legal system, plaintiff--
    Ms. Gilles. Oh, I see. Yeah, totally fine.
    So, in a traditional legal system, I go to court and I file 
a complaint, which is immediately publicly docketed, meaning I 
can search for it. It is a public document that other people in 
my workplace can read and learn about the allegations that I've 
made against an attacker or perpetrator or the employer.
    All subsequent briefings and other filings are publicly 
docketed. The hearing is before the court. The public is 
welcome. The press is welcome.
    That kind of transparency, I think Eliza called it sunshine 
is the best disinfectant, I think that's what our legal system 
is based on. We don't have many closed-door judicial 
proceedings because we believe that the best way to get justice 
is to make sure that everybody is watching.
    I think in this space, in particular, people have to be 
watching, employers have to know that there will be 
consequences if they don't deal with toxic corporate culture.
    Mr. Cohen. In forced arbitration, it's not necessarily in 
the open. It's private.
    Ms. Gilles. It's private.
    Mr. Cohen. Kept under covers.
    Ms. Gilles. Right. Yeah.
    Mr. Cohen. Protects the violator.
    Ms. Gilles. Yeah. No written decisions. The arbitrator is 
not able to offer relief beyond, to deal with structural or 
pervasive problems.
    Mr. Cohen. How has this structure impacted the success or 
lack of success of claims brought by victims of sexual assault?
    Ms. Gilles. Well, first, the structure almost guarantees 
that very few victims will ever come forward. I think we're 
seeing a few very, very brave women who are able to come 
forward and go through arbitration. Because you have to 
arbitrate individually and because you have to play by the 
rules that the employer has written, lots of people feel like 
the game is rigged before they even start.
    Mr. Cohen. Right.
    Who picks the arbitrator? I mean, are the arbitrators 
generally folks that have a record of being favorable toward 
business employers?
    Ms. Gilles. So, just to disaggregate the question a little 
bit, the employer predesignates the arbitration provider, say 
the American Association of Arbitration or JAMS or some other 
group, and then the entities may pick the arbitrator.
    Here's the problem. If I'm an individual employee trying to 
arbitrate against my employer, I don't know who those 
arbitrators are. I get a list of names. I don't know who they 
are. Whereas the employer definitely knows who they are because 
they are repeat-players in the system.
    Mr. Cohen. Somehow it works out, according to my 
information, that in the last 5 years only 1.9 percent of 
victims have won their arbitration cases against their 
employer.
    Ms. Gilles. Yes.
    Mr. Cohen. That's worse than Congress getting its subpoenas 
enforced against the Trump Administration. It's bad numbers.
    It's just amazing to me that we even have to have this 
hearing, that it shouldn't be permitted in these types of 
cases, because the person uses their power to try to bring 
pressure to get sexually harassed or sexually assault, and then 
they get to have a system that's in their favor where it's a 
50:1 shot to win. It's absurd.
    Thank you all for testifying. I appreciate it.
    I yield back the balance of my time.
    Chair Nadler. The gentleman yields back.
    Mr. Raskin.
    Mr. Raskin. Thank you very much, Mr. Chair.
    In the United States, in the 2lst century, the power that 
you have as a private boss does not include the right to 
sexually harass or stalk or grope or molest or rape your female 
employees. A private corporation is not a royal monarchy. It's 
not a totalitarian government. It's not a mafia state.
    A private corporation exists because it gets a charter from 
the State. It's governed by the Constitution of the United 
States and by Federal law, including title VII, which defines 
sexual harassment as sex discrimination, illegal sex 
discrimination.
    These four citizens of quite breathtaking strength and 
courage have just ripped the mask off the continuing regime of 
sexual harassment and sexual assaults by male bosses in certain 
corporate workplaces who operate with impunity and brazen 
contempt for the Rule of law in our country.
    This regime is made possible by the pervasive corporate 
nullification of a constitutional right, specifically the 
Seventh Amendment, which states that the right of trial by jury 
shall be preserved.
    I'd like to ask our Witnesses whether you think you lost 
something by the destruction of the constitutional right of 
jury trial and what you think might have happened if you had 
gotten a jury trial. I wonder if you could just speak briefly, 
because I have one other thing I need to ask Ms. Newton.
    So, Ms. Spottiswoode.
    Ms. Spottiswoode. I absolutely feel like I lost something: 
A jury of my peers, full discovery, production of Witnesses who 
weren't able to--who my employer didn't produce, and just 
having the Rules of Civil Procedure, which were designed to 
protect people like me.
    Mr. Raskin. What an excellent answer. Thank you.
    Ms. Spottiswoode. Thank you.
    Mr. Raskin. Ms. Newton, I'm going to come back to you in a 
second.
    Ms. Henry.
    Ms. Henry. Yes. It angers me that somebody in this 
position, Mike Gentry, who never has to go in front of a jury 
and explain his actions and why he did what he did or even--I 
feel like I'm not getting--it's not fair to me as the victim.
    So, yes, I would like to see someone like this have to go 
in front of a jury.
    Mr. Raskin. Do you think there's some wisdom in what the 
Framers of our Constitution put in our Constitution?
    Ms. Henry. Absolutely.
    Mr. Raskin. Thank you very much.
    Ms. Dushku, what about you?
    Ms. Dushku. Thank you.
    Again, I think accountability and transparency. The people 
who harass and assault have to become accountable to the 
public, to others aside from just those who are involved in the 
case. Accountability, is the only thing that changes behavior.
    Mr. Raskin. Awesome. Thank you.
    Now, Ms. Newton, you got glowing accolades and perfect 
evaluations from your boss, who was the General Counsel of 
Louis Vuitton. He wrote that you reflect the highest degree of 
honesty and ethics in all that you do and that you achieve 
excellent results and that you are a client's dream.
    You were promoted to Vice President of Legal Affairs. Is 
that right?
    Ms. Newton. Yes, that's correct.
    Mr. Raskin. Okay. Then you were sexually harassed in the 
most grotesque and terrifying ways. When you reported it, you 
suddenly became the victim of what you call a campaign of 
retaliation and intimidation by the company, which was 
insulated by the forced arbitration agreement and felt it could 
cover up everything.
    Now, amazingly, if I'm reading your testimony right, you 
are being sued for their attorney fees. Let me just see if I 
can recap this. Tell me if I get it wrong but: They moved to 
compel arbitration. You defended against that based on the New 
York State law which said that those forced arbitration 
agreements are no good in New York law. You won at the District 
court level, but then the Appeals court essentially changed the 
result by saying it's not retroactive to cases of sexual 
harassment that took place before the State legislature acted.
    Now, they're coming after you for attorney's fees, this 
$330 billion company, with $60 billion in annual profits, whose 
employee subjected you to really vicious sexual harassment and 
assault. They want you to pay them how much money?
    Ms. Newton. I don't know the exact amount, but I presume 
it's about half a million dollars.
    Mr. Raskin. Hundreds of thousands of dollars they're 
looking for.
    Amazingly, along the way, Louis Vuitton tried to displace 
responsibility that they have as a corporation operating in New 
York State, in the United States, by saying that there was a 
difference between American and French culture, which is a 
great insult to the French, especially because your harasser 
was American, right?
    Ms. Newton. Yes. When I worked in France, I was never 
sexually harassed or assaulted in France.
    Mr. Raskin. Well, they are just adding insult to injury at 
every turn here. I would hope that they're not stating that it 
is French culture, because I know sexual harassment is against 
the law in France as well.
    I want to thank Mr. Gaetz for supporting the legislation 
against forced arbitration. This is not a partisan problem. The 
divide here is between those who think that corporate contracts 
can override the Constitution of the United States and Federal 
law and those of us who want to stand up for every citizen's 
right to go to work in dignity, free from assault and 
harassment.
    So, I support this legislation very strongly.
    I want to thank these remarkable Witnesses for their 
courage. It's amazing to me that two of you are lawyers, which 
I think just reflects the extent of this problem of forced 
arbitration agreements stuck into these contracts. If anybody 
might have caught it and been able to stop it, it would have 
been lawyers. You were not able to, and you guys speak for 
hundreds of thousands or millions of women and men, indeed, 
across the country.
    I yield back.
    Chair Nadler. The gentleman yields back.
    Ms. Jayapal.
    Ms. Jayapal. Thank you, Mr. Chair.
    I want to just start by saying thank you so much to Ms. 
Spottiswoode, Ms. Newton, and Ms. Henry for your testimony and 
for giving courage to millions of women across this country. I 
know this isn't easy, and I'm sorry that this is what you have 
to go through.
    I am a very proud co-lead of this bill, the bipartisan, 
bicameral legislation, the Ending Forced Arbitration for Sexual 
Assault and Sexual Harassment Act, which would preserve the 
right for sexual assault and harassment survivors to choose how 
they seek justice. So, you have my deepest, deepest 
appreciation.
    Ms. Spottiswoode, I'm very grateful for your testimony, and 
I'm going to direct my questions at you. I am sorry to have to 
get into the details of this in the way that I am going to, but 
I think it's important for the country to hear your voice and 
to see your courage and to see what you had to deal with.
    When Chishti sent you an email about him fantasizing about 
raping and strangling you, how did you react and how did you 
feel about your safety?
    Ms. Spottiswoode. I was appalled. I felt very unsafe. I was 
really afraid for my life and my well-being. I didn't think 
there was anyone I could go to because I had already spoken to 
the head of my office and asked other people on work trips to 
keep an eye out for me. I just knew that nobody was going to 
intervene. Yeah, so I felt very alone.
    Ms. Jayapal. That event occurred before the company trip to 
Brazil, correct?
    Ms. Spottiswoode. Which event? Sorry.
    Ms. Jayapal. When you got the email--
    Ms. Spottiswoode. Oh, yes, correct.
    Ms. Jayapal. --that occurred before your company trip to 
Brazil. You was responsible for the Brazil account, so it's 
fair to say that you had to go to Brazil, correct?
    Ms. Spottiswoode. I was the head data analyst on the 
accounts. So, yes, I had to go.
    Ms. Jayapal. That was your job.
    Ms. Spottiswoode. Yes.
    Ms. Jayapal. That was your job.
    Do you believe that Chishti planned in advance to strangle, 
beat, and rape you in Brazil?
    Ms. Spottiswoode. I try not to think about what he was 
thinking. Yes, I would imagine so.
    Ms. Jayapal. When you were on the Brazil trip, after you 
told Chishti that you were feeling unwell and heading to your 
room, what was your reaction when he said he was, quote, 
``coming to your room''?
    Ms. Spottiswoode. I just felt like I had run out of 
options. I thought I was trying to mitigate harm and not make 
him any angrier. If he was going to be showing up at my door 
angry because I hadn't responded, that seemed worse than--yeah, 
so I wanted to get--I wanted to not get hurt.
    Ms. Jayapal. You believed that he would have forced his way 
into your room?
    Ms. Spottiswoode. I didn't know what would happen.
    Ms. Jayapal. You felt that you would face even greater harm 
or injury if you had not gone there.
    Ms. Spottiswoode. Definitely.
    Ms. Jayapal. It sounds like you were in survival mode at 
this point.
    Were you afraid that Chishti might try to kill you, 
especially if you continued to ignore or resist him?
    Ms. Spottiswoode. I was. I wouldn't necessarily have put it 
that way at the time, but I was having nightmares, even before 
my experience in Brazil, and, yeah, panic attacks.
    I think a lot of us are very good at compartmentalizing, 
because I wanted to do my job, I wanted to be really good at my 
job. So, I tried to put it away. Those things kind of rise to 
the surface from, yeah, in your subconscious.
    So, yeah, I was very afraid.
    Ms. Jayapal. The attack occurred overseas. Did you feel 
comfortable going to the Brazilian police? Would the law even 
had allowed you to seek help from American police?
    Ms. Spottiswoode. I did not feel comfortable going to the 
Brazilian police. It's not common for people to speak English 
there, and I was afraid of what would happen if I went to that 
authority there.
    When I came back to the U.S. and consulted an attorney, 
they said that they thought that it was unlikely that criminal 
proceedings could be brought because the events had occurred 
abroad.
    So, yeah, so I didn't really consider that an option.
    Ms. Jayapal. Ms. Spottiswoode, your abuser went to great 
lengths to remove you from the country and away from your 
friends and family before forcing himself on you, and he 
repeatedly asked you for sex and put you in a position where 
you had to speak up to get him to stop.
    Did you feel that he--did you feel that you had to 
apologize for repeatedly turning him down? How did his repeated 
advances and anger at your rejection affect your behavior?
    Ms. Spottiswoode. Absolutely. So, yeah, I think anyone who 
has experienced something like this knows that you don't just 
say the same thing every time someone asks you like this, 
because you try to say something else and convince them another 
way.
    I didn't want to just repeatedly reject him in a way that 
would make him really angry, so I would come up with other 
reasons, like I would tell him that I had work and couldn't 
meet up or basically would just say anything else to get out of 
the situation.
    I think women who are having these kinds of experiences 
just never think that anyone is going to be looking at a 
transcript and try to figure out what happened, so they're just 
doing whatever they can to try to get through an experience 
without getting hurt.
    Ms. Jayapal. To survive.
    Ms. Spottiswoode, nobody should have to go through this. 
I'm so grateful to you for your courage, for your bravery and 
your testimony.
    Forced arbitration for sexual assault and harassment is a 
lose-lose scenario, and we are going to do everything we can to 
pass this bill and to protect women, like all three of you and 
millions around the country who are grateful to you today for 
your courage.
    Thank you so much.
    I yield back, Mr. Chair.
    Ms. Spottiswoode. Thank you so much.
    Chair Nadler. The gentlelady yields back.
    Ms. Demings.
    Ms. Demings. Thank you so much, Mr. Chair, and thank you to 
our Witnesses for being here today.
    As someone who worked in the criminal justice system, I 
think the testimony that I have heard today, what has happened 
to you, is appalling. Our job is to make sure that it doesn't 
happen to other women.
    I don't know if there's anyone who believes that forced 
arbitration should be okay in cases of sexual harassment and 
sexual assault.
    As I listened to each of you testify today, there just 
seems like there is this recurring theme, that it's almost a 
culture. It's an incident that occurs. Okay. Let's deal with--I 
wish this was an isolated incident, but it seems like it's a 
culture where powerful people in powerful places believe that 
everything and everyone is on the table, and through forced 
arbitration, they almost in advance get the victim's 
permission.
    Ms. Gilles, if you could speak a little bit about the 
culture. That's what really bothers me about this, the culture 
of it, because when something bad becomes so acceptable. If you 
could, Ms. Gilles, just talk about the culture.
    Ms. Spottiswoode, you talked about how you were victimized 
in front of your coworkers. Like the culture, it was okay to 
let everybody see, because that's what happens here. To say 
that it's okay to just settle for forced arbitration, I think 
it's appalling.
    So, Ms. Gilles, okay, please.
    Ms. Gilles. I think you've hit it right on the head. I 
think forced arbitration allows employers to maintain a toxic 
culture. People are getting promoted. Ms. Newton tells a story 
about people getting promoted, her attacker getting promoted.
    These sorts of things, people grabbing butts in front of 
people, this kind of thing--
    Ms. Demings. A culture.
    Ms. Gilles. --is a culture.
    Let's be clear, there's only one way to break down a toxic 
culture, and that's sunlight. We have to make it transparent 
what's happening. We have to make companies realize that there 
is accountability and possibly liability if they fail to fix 
the culture.
    We can appeal to companies in all sorts of ways, and I know 
you all have tried to do this. It's not in their economic best 
interest to allow these things to go on. They lose money when 
women are not productive, when women are afraid for their 
personal safety. They lose time and productivity when men are 
just doing these crazy things.
    We can appeal to that, and it does not change the culture. 
What changes the culture is accountability. That's why we have 
courts, not arbitration, and that's why we have courts, and 
they have done a very good job. Not good enough. These things 
are still happening.
    I think we've gone back. When you think about it--and I'm 
old enough to know this--we've gone back to the 1980s in the 
way that corporate culture is allowed to just be bros, just 
people doing whatever they want.
    Ms. Demings. Ms. Spottiswoode, as we're talking about the 
culture--and I just so appreciate all of you for being here 
today to shine a light on this problem in our society.
    Tell me about, I don't necessarily want to ask you how you 
felt, but to do it in front of others just like it was 
expected, it was okay. Could you talk a little bit about that 
moment, please?
    Ms. Spottiswoode. Of course, it was humiliating. I felt 
like an object and, yeah, you never want your coworkers to be 
thinking about your butt or thinking about you as sexual in any 
way, and that's what this does, is it forces you to be a sexual 
object in your workplace. It's someone else making that 
decision for you, and you never get to take that back from 
them.
    Ms. Demings. Thank you so much.
    Finally, Ms. Henry, you talked about during your time and 
you were so glad to--all of you, for the opportunity in your 
dream jobs--but you were told it was just HR stuff, right, it 
was just HR stuff when you were signing the papers. We know 
that closed arbitration is often buried in the fine print.
    If it's such a good thing, such a great option, why do you 
believe it's buried in the fine print and it was just told to 
you it was just HR stuff?
    Ms. Henry. I feel because they don't want you to know. They 
don't want anybody, I guess, to be held accountable for such 
actions. It's just easier to sweep it under the rug and let it 
go than try to make--nobody in the community knows. Customers 
coming in daily doesn't know what's happening behind the 
scenes. It's not fair, again, it's not fair to the victims. I 
had no idea what even arbitration was until I came here.
    Ms. Demings. Thank you again. Thank you all so very much 
for your testimony today and your bravery. Thank you.
    Mr. Chair, I yield back.
    Chair Nadler. The gentlelady yields back.
    Ms. Fischbach.
    Ms. Fischbach. Thank you, Mr. Chair. I appreciate the 
opportunity.
    I just want to direct some comments to Ms. Perry and Ms. 
St. John. What's happened to so many women and others in the 
workplace is terrible, but I really am concerned that by 
involving the government in these contracts between adults in 
the area of sexual harassment and assault, we're opening a door 
for more government involvement in other areas of contracts.
    I think, Ms. Perry, in your opening you pointed out some of 
the things that are going on already. There's over a dozen 
bills right now in the House which have government intervene in 
contracts.
    Clearly, this bill is not being considered in a vacuum. 
There's a lot going on with this. There's a concerted effort in 
Washington, DC, to decide the contents of contracts between 
adults.
    This is not what the competent and responsible adults of my 
district want, because they accept the fact that they're 
signing a contract.
    Ms. Perry, do you think there's a danger in passing small, 
targeted bills like this one in opening the floodgates to 
government intervention in contracts? If you could speak to 
that?
    Ms. Parshall Perry. I absolutely do. In fact, the reason 
that I've mentioned confidentiality and NDA agreements, needing 
to make clear that if this bill goes forward, it needs a wider 
discussing things, like the inapplicability of NDAs.
    That would be a protection, but what we've done is we've 
already cracked a hole in the dam to eviscerate whole cloth the 
FAA. I don't think there's anyone on this panel, other than 
potentially Ms. St. John and myself, who wants the FAA to stick 
around. That's absolutely not even considering a hundred years 
nearly of jurisprudence on the FAA.
    What the Supreme Court has time and again reinforced--in 
fact, they just granted cert in yet another case. They will 
take up arbitration again for the third time in 3 straight 
years.
    I do have problems when we come in and we make attempts to 
slice away certain provisions of longstanding Federal law 
because it does open the door to more government intervention, 
and that does bother me.
    Ms. Fischbach. Ms. Perry--and maybe, Ms. St. John, if you 
have anything to add, please go ahead--but are any of the 
States addressing this? Or is this just an issue at the Federal 
level?
    Ms. Parshall Perry. There are actually five States that 
have already passed legislation stating that in certain types 
of employment discrimination claims NDAs, confidentiality 
agreements, cannot apply.
    So, at the State levels we are actually seeing an increase 
in legislation designed to be protective, and rightly so. These 
are contracts, like any other contract, and there is absolutely 
nothing in Supreme Court history that says these particular 
contracts are coerced. In fact, the court has held universally 
exactly the opposite.
    Ms. Fischbach. Well, and I would argue that you have--you 
sign it. It is not--even though we use that it's forced 
arbitration, as people are saying. It's not really. You have 
signed something that you have agreed to it.
    Just kind of a little bit, I guess, of a hypothetical. 
Under current law, what prevents someone from suing, even if 
there's an arbitration agreement in there?
    I understand that it could be thrown out, that there's 
issues like that. I know that part of the issue is bringing 
things into the light, and even a case that was dismissed would 
certainly bring that into the light, and there isn't anything 
that would prevent them from doing that.
    Ms. Parshall Perry. Multiple Federal Circuits and the 
Supreme Court have vacated remedies, awards, for material 
breach, for impartiality of arbitrators, for malfeasance, for 
imbalance of power, for adhesion. They will not enforce a 
contract that is deemed to be adhesive.
    So, when Congressman Gaetz represented that these were 
contracts of adhesion, contracts of adhesion are not legally 
enforceable.
    Ms. Fischbach. Thank you very much.
    I know there is one example that I've heard over time, that 
even though there was an arbitration agreement in the contract, 
they sued the vendor separately and were very successful in 
that.
    Is there anything else, Ms. Perry, that you would like to 
add that maybe we've missed, or you've heard that you would 
like to add something to?
    Ms. Parshall Perry. Well, we can quote battling statistics 
all day. The fact of the matter is we have a 40 percent 
increase in Federal filings. Our dockets are crowded. Justice 
delayed, particularly for women with these claims, is justice 
denied.
    That right to a trial guaranteed by the Seventh Amendment 
has been interpreted by the Supreme Court to be as good in 
arbitration as through litigation with certain protections in 
place.
    Ms. Fischbach. Thank you very much. I appreciate it.
    Anything, Ms. St. John, if you have anything you would like 
to add?
    Ms. St. John. I will just add that there have been examples 
where workers have asked for these clauses to be taken out of 
contracts and they have been successful. So, the idea that it 
is really forced I don't think is borne out by the facts.
    Ms. Fischbach. All right. Thank you very much.
    Mr. Chair, I yield back.
    Chair Nadler. The gentlelady yields back.
    Ms. Scanlon.
    Ms. Scanlon. Thank you, Chair Nadler.
    I want to thank all our Witnesses for testifying before us 
today, particularly, obviously, the survivors. I applaud your 
courage and your openness in discussing this deeply emotional 
and painful subject.
    Like a majority of women in the workplace, I've experienced 
unwelcome sexual harassment and physical contact. While less 
horrific than the experiences you related today, I want to 
acknowledge how pervasive and corrosive this issue is and thank 
you for your courage again and your resolution in sharing your 
experiences to really shine a light on what we're actually 
talking about here, not some dry contractual provisions.
    I would like to discuss with Professor Gilles a couple 
different topics, the nuts and bolts of why forced arbitration 
doesn't favor employees, how it is different, what we're seeing 
today than what Congress intended, and why it's a problem that 
the Supreme Court has so grossly expanded the Federal 
Arbitration Act.
    So, first, the nuts and bolts of why forced arbitration 
doesn't favor employees. Several of our colleagues have 
mentioned litigation is very expensive. So, is arbitration, 
isn't it? These employees have to get a lawyer. Sometimes the 
arbitration is in a venue that they're not familiar with.
    Can you speak a little bit to the costs of arbitration?
    Ms. Gilles. The costs are high. When employees actually 
decide that they want to go into arbitration, they're doing it 
alone. So, they're not doing it as a collective. So, there's no 
pass the hat that we would see in a public court system because 
the arbitration clause prevents class and collective 
litigation. So, right off the bat, that's a lot for an 
employee.
    When you think about where these claims are coming from, 
they're often sounding in sexual harassment and hostile work 
environment. Proving that is a pretty huge lift. I mean, 
lawyers have a very difficult time. We have some lawyers in the 
gallery who do this.
    These are really difficult cases. I know there has been a 
lot said disparagingly about it's just going to be lots of 
plaintiff's lawyers getting rich. Plaintiff's lawyers don't get 
rich off employment discrimination cases because they're really 
expensive, they're expert heavy, and they require a lot of 
evidence. The same is going to be true in a successful 
arbitration.
    Ms. Scanlon. Am I correct that companies that include these 
forced arbitration clauses in the fine print in nonnegotiable 
contracts are actually saving money, right? They don't include 
these clauses because it's the goodness of their hearts. It's a 
cost-saving ploy.
    Ms. Gilles. It sure is. I just want to point out that Ms. 
St. John said earlier that having these clauses leaves money 
for companies to add to benefits of employees. I tried not to 
laugh out loud because that is not what's happening. It's not 
like my 401(k) plan is getting better matched because my 
employer has a forced arbitration clause.
    They're keeping this money. They're saving all the money 
that they would spend on litigation or spend it on just making 
their work culture safer for women, and they're just using that 
to line the pockets of their shareholders.
    Ms. Scanlon. So, we have seen a little bit. When the forced 
arbitration Act was originally passed in 1925, it was designed, 
as I understand it, to be an option for commercial entities of 
roughly equal bargaining power. In 1967, the Supreme Court even 
held that it was designed to include protections for captive 
customers and employees who don't have equal bargaining power 
and are faced with a ``take it or leave it'' contract.
    What we have seen over time is that the Supreme Court has 
expanded the FAA beyond Congress' original intent, so that it 
does apply to everyday consumer and employment contracts. This 
seems like it should be an opportunity for Congress to 
intervene and say that's not what we intended; correct the 
judicial activism we've seen from the conservative Supreme 
Court.
    Can you comment?
    Ms. Gilles. You have been urged to by the late Justice 
Ginsberg. Twice she begged. She wrote dissents where she said--
and she read them from the bench really signaling her 
displeasure. She said this has gotten to a tipping point and 
the only thing that is going to change this is congressional 
action.
    I think she was right. So, I think the only thing that can 
do this is some change to Federal law.
    Ms. Scanlon. It's not just progressives who are concerned 
about this expansion of the Federal Arbitration Act, right? 
We've heard from Attorney Generals from 50 States, DC, and 
territories saying this is a problem. Can you explain that?
    Ms. Gilles. Well, so the AGs are very worried because 
they're getting tons of complaints, because these women can't 
bring actions on their own. They can't bring private 
litigation.
    So, where do you turn? You turn to the public enforcer, 
because you don't want to go into arbitration and have your 
claim decided by some arbitrator, but never to be heard from 
again. You want to make change in your workplace forever more. 
So, you go to the public enforcer.
    The problem is, especially in recent years, post-COVID, 
they don't have the staff for it. They don't have the 
resources. So, we can't rely on a public enforcer to do the 
work that Congress intended private individuals to do when they 
enacted title VII.
    Ms. Scanlon. Thank you.
    Ms. Gilles. Thank you.
    Ms. Scanlon. I yield back.
    Ms. Fischbach. Mr. Chair?
    Chair Nadler. The gentlelady yields back.
    Mr. McClintock.
    Ms. Fischbach. Mr. Chair, I just really quickly wanted to 
ask, given that one of the Witnesses' names was used very 
directly, would they have the opportunity to respond?
    Chair Nadler. Yeah, for 30 seconds.
    Ms. Fischbach. It was Ms. St. John's whose name was 
referred to.
    Chair Nadler. Okay.
    Ms. Fischbach. Thank you.
    Ms. St. John. Thank you.
    When a business saves money in one area, it's going to 
invest the money somewhere else. I think it's perfectly 
reasonable to think that if the benefits are abbreviated for 
employees in one area, they're going to invest in another area 
on behalf of those employees.
    Thank you.
    Chair Nadler. Mr. McClintock.
    Mr. McClintock. Thank you, Mr. Chair.
    First, to be clear, rape, sexual assault are serious, 
serious crimes, punishable by serious, serious penalties.
    Is there anything in an arbitration agreement that prevents 
the perpetrator from being charged and prosecuted under these 
criminal laws, Ms. Perry?
    Ms. Parshall Perry. None whatsoever. They will always have 
the right of criminal redress in every one of these claims.
    Mr. McClintock. Would it ever be possible under our system 
of justice to write an arbitration clause that would forestall 
the ability of a prosecutor to bring charges for these serious 
crimes?
    Ms. Parshall Perry. No. It would be legally unenforceable.
    Mr. McClintock. Ms. St. John, do you agree?
    Ms. St. John. Yes, absolutely.
    Mr. McClintock. The constitutional argument we hear is that 
the Seventh Amendment guarantees the right of a jury trial in 
common lawsuits over $20 dollars and that arbitration clauses 
violate this guarantee. The Constitution also recognizes the 
sanctity of contracts.
    The fact of the matter is the First amendment guarantees us 
the freedom of speech, and yet nondisclosure agreements are 
often common in contracts as well.
    I think every contract ultimately constrains and limits the 
rights of both parties. That's why you have a contract. One 
party gives up money; the other party gives up time.
    Every condition of a contract requires either one or both 
of the parties to give up individual rights to reach a mutually 
agreeable outcome. If the net result of the agreement is not 
beneficial to either party, then the agreement simply doesn't 
take place.
    This business of forced arbitration, well, force requires a 
gun. I believe we all can agree a gun is a bad thing to be 
brought into a voluntary agreement between two parties.
    The fact of the matter is, it seems to me that once we 
start limiting the freedom of parties to contract with each 
other, we lose that mutual negotiation that produces an 
agreement that both sides benefit from.
    What am I missing here?
    Ms. Parshall Perry. From my part, nothing.
    Mr. McClintock. Ms. St. John?
    Ms. St. John. I agree with that. These are voluntary 
agreements.
    Mr. McClintock. Let me ask you this. If arbitration 
agreements are such a bad thing, why would we exempt unions 
from the provisions of this bill? Do either of you have an 
explanation for that?
    Neither do I.
    It seems to me, for my part, thinking as an employee, I 
would personally prefer an arbitration clause because, frankly, 
I can't afford an attorney. I can't afford the enormous costs 
of going to trial. I wouldn't want to wait years and years with 
something like that hanging over my head.
    Now, that's just me. I make that choice when I approach an 
employer. The employer might prefer the same thing. He might 
not. If he doesn't, I might ask for something more or simply 
say the terms aren't acceptable to me, I will go elsewhere. If 
the employer says that he agrees, well, then, we have an 
agreement that's mutually beneficial.
    I wonder, what gives Members of Congress the right to tell 
us that we can't enter such an agreement?
    Ms. Parshall Perry. I think you have stated the issue quite 
eloquently. This is a matter of State and common law. We have 
been overseeing contracts for years between private parties. 
The more we get involved at the Federal level, the more 
problematic the trend can become.
    Again, these are not contracts of adhesion. If they are, 
they can be challenged in court. The outsized power, I believe, 
is most fully exercised during litigation, where a giant 
corporation, like LVMH, has multiple millions of dollars 
available for litigation--
    Mr. McClintock. As an employee, that would scare the hell 
out of me--
    Ms. Parshall Perry. It would me as well.
    Mr. McClintock. --going against their legal department with 
my meager resources.
    Ms. Parshall Perry. Absolutely.
    Mr. McClintock. There's a provision in there that provides 
for an opt-out once the dispute is established. What effect 
does that have on the parties?
    Ms. Parshall Perry. I would say, based on prevailing 
rhetoric, it is probably going to disincentivize someone to 
pursue arbitration. What we're hearing is that the only 
solution, the best solution is going to court.
    At that point, the balance of power has changed most 
significantly. I find that problematic because there are 
different incentives, different driving factors. One with a low 
value claim will definitely want to take it to court. A high-
volume claim would want to arbitrate.
    There are so many intersecting interests at that point and 
so many disparities among the two individuals after a sexual 
assault or sexual harassment claim have been filed that it 
makes arbitration impractical, if not impossible.
    Mr. McClintock. Thank you.
    Chair Nadler. The gentleman yields back.
    Ms. Garcia.
    Ms. Garcia. Thank you, Mr. Chair.
    I must say that, first, I want to thank the Witnesses for 
testifying today. I know it takes an incredible amount of 
courage to share such painful stories and to have to relive the 
words and bring back some of the memories of every circumstance 
that you have described. I think a couple of you brought a 
little tear in my eye right here because it's just so painful, 
and I can see that.
    As a former judge, I have a very deeply held belief that 
everybody should have their day in court. Everybody should have 
their day in court. That is just the essence of justice for all 
in our country.
    So, we're glad to be able to hear from you today on this 
bill so that we can act, as others have said, and do justice 
for all you.
    I want to start a little bit with where Ms. Demings left 
off with Ms. Henry. When she was talking about the culture, 
it's interesting to me to see that all four of you are from 
very, very different sectors, different levels of professional 
work that you do, different environments, but yet it's the same 
culture, and it's the same kind of situation that happens to 
women across America.
    I must admit that even I, even as a judge, was sexually 
harassed at the workplace. So, it happens to all of us. I know 
it's hard to relive the moments.
    Ms. Henry, can you just tell me how you really felt? I 
mean, I know I remember how I felt. How did you feel when your 
employer even went to your home? Did you fear for your life?
    Ms. Henry. I really didn't know what to anticipate from the 
whole thing. It got to the point where it was out of control. 
Yes, I did fear there could be more. As the angrier he became, 
the more I turned him down and asked him to stop, I was worried 
for my safety.
    I was also--I'm sorry.
    Ms. Garcia. Take your time. Take your time.
    Ms. Henry. I felt ashamed. I felt I'm a working woman, I've 
been in the workforce for a very long time, I didn't deserve 
this. I didn't deserve to be treated this way. I did feel like 
I was a strong woman. When someone treats you that way, they 
beat you down, and you feel like you have nobody to talk to.
    So, I was afraid to even say anything, but it got to the 
point where maybe I was fearing. That's why I had finally tried 
to get some help.
    Ms. Garcia. Right.
    How about you, Ms. Newton, can you share it?
    Ms. Newton. I had similar feelings, yes, about how I felt. 
I was just demeaned. Sorry, I'm having trouble with my mask. I 
felt extremely demeaned and humiliated. I felt that I was being 
made an example of, that I was being used as a poster child of: 
Don't come to us with this type of thing, otherwise we will 
name you in an email by the CEO. We will sit you in the side 
and sit the harasser up front.
    Similar to what Lora said, I felt very isolated. I think I 
have even written to friends: I feel beaten down. I have said 
that.
    Ms. Garcia. Thank you.
    What about you, Ms. Dushku? It's surprising that even in 
your industry that people watched what your predator was doing 
and nobody did anything.
    Ms. Dushku. Yes. I felt unprotected, and I felt angry. I 
felt confused, as all the other women have described. It's like 
a suffocating feeling, because just that, I mean, as human 
beings, to have our voice and be able to speak out when someone 
disrespects you, and as a grown woman, as an adult, as a human 
being, demeaning, suffocating. I just came home every night and 
could tell my husband.
    It was, also, just so shocking that in this day and age, as 
you said, and as so many have spoken about, the culture, that 
the culture was accepting of that. While I don't blame some of 
the individuals because they, too, reported to their bosses and 
didn't want to lose their jobs, it starts from the head. When 
you have someone who's in such a high position of power and 
they're the boss, who confronts the boss if they don't expect, 
in some sense, that they could lose their job.
    So, when these arbitration clauses protect the bosses, 
there's no justice for any of the employees in the culture.
    Ms. Garcia. Thank you.
    I know we've heard a lot from the last Witness, and I know 
that you've talked about fear.
    I think you said earlier that you didn't go to the police 
because you were in Brazil, right?
    Ms. Spottiswoode. Yes, that's right.
    Ms. Garcia. That you have to have a level of trust to be 
able to sit down and talk to law enforcement about this. I know 
that it is true for many rape victims.
    Ms. Spottiswoode. Absolutely. You need to speak the same 
language as them. So, there were a lot of reasons why I didn't 
go to the police.
    Ms. Garcia. Well, thank you.
    Again, I see that my time is running short, but I just 
wanted to ask--well, I wanted to ask all of you, but my time is 
short, so I will start with you.
    When did you--
    Ms. Fischbach. I think she's gone over.
    Chair Nadler. Yeah.
    Ms. Garcia. I'm sorry?
    Chair Nadler. Yes, the gentlelady's time expired.
    Ms. Garcia. My time is up. I yield back.
    Chair Nadler. Well, a minute and 17 seconds ago.
    Mr. Tiffany.
    Mr. Tiffany. Thank you. Thank you, Mr. Chair.
    Mr. Chair, I just arrived at this hearing. Is it correct 
that the collective bargaining provision excluding unions has 
been struck from this bill?
    Chair Nadler. Yes.
    Mr. Tiffany. So, that provision in the bill in regard to 
collective bargaining agreements has been struck?
    Chair Nadler. Yeah. It's going to be an amendment in the 
nature of a substitute doing that.
    Mr. Tiffany. Okay. Thank you very much, Mr. Chair.
    First, before we start here, I want to thank all the 
Witnesses for being here today in what is I'm sure not an easy 
thing, to come before a Committee of the United States 
Congress. Thank you for attending today and giving your 
testimony.
    Ms. Perry, Representative McClintock posed a question to 
you in regard to arbitration, and I got the impression that 
there was more that could be added.
    Do you wish to add on to your testimony that you were 
giving in regard to Mr. McClintock's question in regard to, I 
think he used the phrase ``arbitration impossible''?
    Ms. Parshall Perry. Ex post, after an offense has occurred, 
the interest of the parties has changed significantly. One is 
put in a status of being a victim and one is a perpetrator.
    At that point, making arbitration a viable opportunity for 
the individual claimant is next to impossible. Getting to that 
agreement itself is going to be incentivized differently, 
particularly so by employers who, at that point, will most 
certainly want to keep it out of the public eye and, depending 
on the value of the claim, will figure it's faster and cheaper 
to go through arbitration in the first place.
    So, an ex post provision on something like this is unlikely 
to have any meaningful effect.
    Mr. Tiffany. Do I hear in this process that you're talking 
about this actually could put the employer in a stronger 
position?
    Ms. Parshall Perry. Yes, it could. Absolutely.
    Mr. Tiffany. Significantly stronger?
    Ms. Parshall Perry. Yes.
    Mr. Tiffany. Would this process be better if the process 
was allowed to be public record, so everyone was on notice of 
the offenses, instead of striking arbitration all together?
    Ms. Parshall Perry. That's a very accurate assessment of my 
position on this, precisely. If we are going to get involved in 
longstanding precedent and Federal law that has been routinely 
upheld, let's do it to the narrowest extent possible and make 
sure that the entire premise for today's hearing, which is 
shielding bad actors, is removed altogether.
    Mr. Tiffany. Thank you.
    I will yield back, Mr. Chair.
    Chair Nadler. The gentleman yields back.
    Ms. McBath?
    Ms. McBath. Thank you so much, Chair Nadler.
    Good afternoon to all our Witnesses today. Thank you so 
very much for being here, and just thank you for sharing your 
experiences surviving sexual violence and harassment in the 
workplace. I have read each of your testimonies, and I know 
this is not at all easy for any of you. So, I praise you all 
for your courage and your strength.
    I also want to thank our experts who are here today, as you 
continue just to shine more light on these issues.
    I know that one of the reasons it's so consequential that 
you're here before us, sharing your experiences, is because 
some of you are subject to arbitration clauses that were 
forced, really, upon you when you entered employment. I can 
only imagine that, when you first began to work for your 
company, you were filled with the excitement and all the 
eagerness, you know, for your new journey that lay before you. 
You could not have imagined, I'm sure, that you were also 
signing up to be silenced and suppressed at the same time.
    No one should ever have to experience violence or 
harassment when they're just simply trying to put food on their 
family's table or doing the work that they love. If they are so 
cruelly subjected to that, then they should not then be forced 
to arbitrate their claims and coerced into silence.
    The secretive and the confidential nature of arbitration, 
it always just kind of allows companies to prioritize 
protecting their own image instead of seeking justice and 
really seeking truth. This has allowed, as we're hearing today, 
countless stories of women and men's trauma that's been hushed 
and hidden.
    I just want to say, but because of your strength, those of 
you that are before us today, in particular, all of the women 
that are sharing your stories, I hope that future survivors 
will not have to suffer in silence anymore. I'm so grateful for 
your being here today.
    My questions are really actually for each of the survivors. 
I preface them by saying, please take your time, the time that 
you need, when answering them, but also, I'd really like to be 
able to hear from all of you.
    So, if you can, just very succinctly how have your 
experiences enduring this horrific sexual violence and also 
arbitration and retaliation affected your physical and your 
mental health?
    Ms. Newton, I'd like to start with you.
    Ms. Newton. Thank you, Congresswoman.
    For me, my physical health has been jeopardized constantly. 
I was hospitalized twice last year. I have been diagnosed with 
PTSD. I have now a team of medical advisors because of all the 
consequences I've suffered in having to deal with the amount of 
stress that this causes me, and I had to take medical leave 
earlier this year.
    So, it's a constant source of damage to my emotional and 
mental and physical health as well.
    Ms. McBath. Anyone else like to respond?
    Ms. Dushku. I mean, I can speak to my experience just as 
far as I was coming into a time in my life where I was getting 
married; I had my first child. I just had my second child 3 
months ago. Every single time I have to relive this experience 
and retell this experience, the retraumatization is very real.
    My situation was not--there was not a physical assault, but 
the words leave me, to this day, with a feeling of hands on my 
throat. Like, you just feel like you can't breathe. It affects 
your relationships with your colleagues and your family. It's 
so isolating. The isolation is just maybe one of the most 
horrendous parts, because I think we heal through telling our 
story, we heal through connecting with others, and the 
inability to do that just leaves you in this isolated, lonely 
place.
    The shame that people have talked about is very real. 
You're re-shamed. You're re-shamed by your harassers through 
the process. I was horribly re-shamed while in the process 
leading up to this by my employer and my harassers.
    I want to leave the others time as well, but that's just--
those are some examples.
    Ms. McBath. Anyone else like to respond?
    If not, my time is up.
    Ms. Spottiswoode. Just to respond quickly, I recovered very 
quickly from my physical injuries, but I have PTSD, and that 
affects my life every day.
    In addition, the stress of being in ongoing litigation and 
knowing that, every time I talk to my parents, Chishti is an 
ongoing presence in our lives and costing us money and invading 
our time together. My relationships with my parents will never 
be the same. My relationships with other people--my trust is 
just shattered.
    Ms. McBath. Thank you so, so very much, each of you.
    My time is up.
    Chair Nadler. The gentlelady yields back.
    Ms. Spartz?
    Ms. Spartz. Thank you, Mr. Chair.
    I have a little bit different question. Maybe, Ms. Perry, 
I'll ask you. It's unfortunate and it's sad that things like 
that happen. It's a lot of brave women willing to step up and 
have this conversation. So, I think it's good to have 
conversation.
    There are also situations where some women maybe might feel 
uncomfortable to go in the court of law and get an attorney. 
It's much longer process, much more public process. I can see 
some women would have a valid concern, if that arbitration 
process is not available, they might actually just either live 
with it or leave their job.
    If we look at this bill--with very broad definitions, too. 
It could have some entrepreneurship with some attorneys. In all 
those cases I've seen--and nothing against lawyers, but a lot 
of cases I've seen, they are the only one ended up with the 
money, not the actually victims. It's also, companies wouldn't 
even offer that option, which actually could be a valuable 
option for some of the women.
    So, my question would be for you: If you would look at 
arbitration process--and I am not an attorney, so I wanted to 
see, is there is something within the process that could be 
improved?
    Also, if the arbitration company is not doing proper due 
diligence, what is the recourse? What recourse is available? Or 
maybe the recourse could be available from the standpoint if 
someone's really doing something wrong and is not really taking 
seriously the case or biased or is not doing a good job.
    So, if you can just maybe list few of the things that maybe 
could be improved within the process.
    Ms. Parshall Perry. There are a number of remedies that are 
available to claimants here. One of them is a claim for 
material breach of the arbitration clause itself.
    One of them is vacation of an arbitration award, when it's 
determined that the parties were in outsized influences of 
power, that contain terms that solely benefit an employer. The 
Fourth Circuit ruled that in a decision from 1999. It's been so 
held by the other Federal Circuits as well.
    The FAA guarantees neutrality in the arbitrators, and if 
there is any evidence of impartiality, that, too, can be the 
vacation of an award. There are EEOC claims that can be brought 
simultaneously. The Supreme Court has universally held, we want 
to make sure individuals don't just go through arbitration, but 
they go through the EEOC, because we want to make sure that 
these claims are a Federal recordation of what's transpiring 
behind closed doors.
    So, there are multiple avenues here that can still be 
pursued. There is nothing in the FAA that prevents individuals 
from going to appropriate law enforcement officers, filing an 
EEOC claim, bringing a claim for adhesive contracts, contracts 
that our outweighed/outbalanced.
    Ms. Spartz. Uh-huh.
    Ms. Parshall Perry. So, there are options through the FAA 
that allow particular claimants like those here.
    I want to stress, this is a uniquely female issue. The EEOC 
statistics from last year, only 16 percent of 6,500 claimants 
were men. This is a culture specifically, relatedly dealing 
with female harassment. Women bear the brunt of sexual 
harassment.
    I was a plaintiff's lawyer representing women in claims 
against major corporations. I've also seen how outgunned they 
are when litigation is pursued as an option. Universally, they 
end up settling because they cannot carry the financial burden.
    So, there are safeguards in place.
    Chair Nadler. Would the gentlelady yield?
    Ms. Spartz. Just a second.
    If you would look at everything, what is there, if there is 
something that could be improved in the process--because you've 
been on that side, and, as I say, I'm not an attorney. I am 
trying to understand because it's a point of--if there is 
something that could be improved within legal framework that it 
is a system, as you know, give that option, but still have the 
transparency that's needed.
    You know, if there are some things that you could State a 
few things, and then I'll yield to the--
    Ms. Parshall Perry. Yes. Confidentiality and the use of 
nondisclosure agreements. If we're going to carve out these 
exceptions for sexual harassment and sexual abuse claims, we 
need to copy them alongside with NDA and confidentiality 
provisions so that all the discussions we're having about 
transparency and perpetuation of bad actors can be solved.
    If that is truly the issue, let's disclose everything. 
Let's modify the FAA only to the extent that bad actors in 
these particular claims can ultimately be brought to the light.
    Ms. Spartz. Okay. Thank you.
    I yield to Chair.
    Chair Nadler. I thank the gentlelady for yielding.
    I just wanted to point out that we have nothing against 
arbitration. If the woman in the case chooses arbitration, 
that's her choice. The point of the bill is that she should 
have that choice, rather than be bound by an arbitration clause 
that was--
    Ms. Spartz. Yeah, I reclaim my time. I'm just saying that 
employers will have no incentive then to propose this in 
agreements. They will just say, completely take it out. Because 
there is no reason for them even to do that. That's my concern 
if the legislation passes. They don't have to propose it at all 
in these cases.
    Chair Nadler. If the gentlelady would yield?
    Ms. Spartz. My time has expired.
    Mr. Issa. I'd ask unanimous consent that the gentlelady be 
given 1 additional minute.
    Chair Nadler Without objection. I thank the gentleman, and 
I thank the gentlelady.
    Yeah, but the point is, she should be able to choose 
arbitration. If someone has a dispute with a company and she 
and the company are both for arbitration, fine. The point of 
the bill is that, very often, in employment contracts, which 
you have to sign if you want to get a job, there's a mandatory 
arbitration clause, which means you have no choice. That's what 
we want to solve here.
    Ms. Spartz. Well, I reclaim my time just quickly, but I 
understand. I'm just saying, that will give companies not to 
have even an option to offer then. Because they have no 
incentive then to offer arbitration as an option at all if you 
have them to put in--it has to be both of them.
    That's what generally my concern, that they will not even 
have it. I'm, as an employee, going to come to this big company 
and say I want it, and they say, no, too bad. They don't have 
to, right? I don't have that negotiation power. So, if we want 
to resolve it, maybe we should look more on transparency.
    I understand your point, so I yield back. My time has 
expired.
    Chair Nadler. The gentlelady's time has expired.
    Mr. Neguse.
    Mr. Neguse. Thank you, Mr. Chair. I want to say thank you 
for hosting this hearing today, and I certainly am supportive 
of the underlying legislation.
    I want to say thank you to each of the Witnesses. Thank you 
so much for appearing today and for your very brave testimony.
    Professor Gilles, I'd like to point you to a 2016 letter 
released by the civil rights organization The Leadership 
Conference on Civil and Human Rights. In that letter, the 
organization says, quote, ``Forced arbitration does not allow 
public scrutiny of alleged discrimination, nor does it allow 
for the creation of judicial opinions that help develop the law 
and provide further guidance on emerging trends. As a result, 
landmark civil rights laws, such as those protecting employees 
from race, gender, and age discrimination, have been rendered 
meaningless,'' end quote.
    I wonder if you could opine as to whether you agree with 
that assertion, and, if so, perhaps elaborate on how 
protections against sexual harassment are sidelined by 
arbitration, in terms of the Conference's position.
    Ms. Gilles. Thank you, Congressman, for the question. I 
totally agree with the letter. I feel like I've written words 
like that in articles about the impact of forced arbitration.
    The reality is not that difficult to discern if claims are 
being shunted into a hermetically sealed, siloed, private 
regime where corporations write the rules, employees and 
consumers can't bring collective claims, and there's no written 
decision.
    Despite some of the discussion--I won't call it out by 
name, but despite some of the discussion about how easy it is 
to go to court and have your arbitration clause deemed 
unenforceable, that's actually not the case. We've spent the 
last decade litigating all these arbitration clauses in court 
after court dutifully, following the Supreme Court has upheld 
arbitration clauses 9 times out of 10.
    So, I think the problems are severe, and you're right to 
point out that they're particularly severe when we think about 
the most vulnerable groups in our society--minorities, women, 
low-wage workers, people who often lack political voice and for 
whom collective litigation is probably the only way that 
they're going to be able to resolve their disputes.
    I also just want to take a moment, although the 
Representative has left, to just note that the discussion that 
was just being had is a little hard to keep on the record.
    Post-dispute arbitration is fine. The truth is, if 
employers don't have an incentive to offer it after the dispute 
has arisen, then I don't understand why there's an incentive 
beforehand that's not completely unfair and illegal, right?
    It's very possible, as the Chair said, that an employee and 
an employer could decide that they just want to resolve the 
dispute in arbitration once the dispute has arisen. The 
incentives are still there, if you believe them, which is that 
maybe it's faster, maybe it's cheaper, and maybe the secrecy or 
the privacy is a benefit to both parties. I don't understand 
the argument that an employer suddenly won't want to offer that 
as an option, and I think that is wrong.
    Mr. Neguse. Well, I certainly share your confusion on that 
point. I wasn't going to address it, but I'm glad that you did 
and that the Chair did as well.
    I couldn't agree with you more, and not to belabor the 
point, but I think your summation of the various reasons why 
arbitration can be so flawed, in terms of corporations writing 
the rules and victims, employees, and consumers being unable to 
pursue collective claims and ultimately a process devoid of any 
transparency, is all the more reason for us to move forward 
with the underlying legislation.
    So, again, I thank you for your testimony. I thank all the 
Witnesses for their testimony today. With that, I will yield 
back to the Chair.
    I yield back the balance of my time.
    Chair Nadler. The gentleman yields back.
    Mr. Bentz.
    Mr. Bentz. Thank you, Mr. Chair.
    Thank you to the Witnesses for their strength and courage 
and certainly patience for being here today.
    I'm tempted to talk about one of the remarks that was made, 
about the jury system being, quote, ``the essence of justice 
for all.'' I'm a trial lawyer, not a very good one, but tried a 
lot of cases. I would just suggest there's a lot of room for 
improvement when it comes to jury trials, not to mention some 
of the things that give them their merit, which is the crucible 
of cross-examination. I would just suggest that many people 
that have gone through the horror and terror that you folks 
have would want to avoid that.
    You're here today, and I'm very proud of you for being 
here.
    I have a question for Ms. Perry. It goes to, what should be 
the default position in these contracts? If not arbitration, 
then what?
    Because, as we know, at least as I understand from the 
research I've done in anticipation of this hearing, is that 
arbitration has evolved as a device to limit risk and to make 
more certain the future of the activities of a business or 
others. So, if we're not going to have arbitration as the 
default device, what would it be?
    Ms. Parshall Perry. That's an excellent question. I think 
the only other option would be litigation. Understanding what 
we're up against in terms of the costs and the delays 
associated with Federal litigation, you are looking at very 
much justice delayed in these particular circumstances.
    What we're doing is we are forcing everything through an 
expensive, protracted process in which the imbalance of powers 
between individuals and their employers is significantly 
intensified. I would not want to face a multinational 
corporation bringing suit against me for attorneys' fees, 
because if I had the option to pursue it another way, with a 
neutral arbitrator, in tripartite litigation or arbitration, 
which is allowed under the FAA, I would certainly want to do 
that.
    I would want to appoint my own arbitrator, the company 
would appoint its own, and there would be a neutral umpire 
arbitrator. That's really the ideal way to go forward on these 
cases.
    Mr. Bentz. One of the reasons the arbitration device has 
been embraced, if you will, by business and others is to avoid 
the runaway jury. If you look at one of the problems that goes 
with juries, it is there's that.
    Ms. Parshall Perry. Yes.
    Mr. Bentz. The old concept that you're going to get a 
balanced result isn't necessarily always true.
    So, the challenge, I suppose, is that, if this bill passes, 
isn't it correct to say that we will see the cost of such a 
result spread about among all of us, as we see corporations 
resorting to what would then be the default--that is, 
litigation?
    Is that a correct--by the way, I'm not trying to demean or 
belittle or suggest that anybody shouldn't receive proper 
recompense for whatever bad things have happened. They should. 
So, we're really debating here how best to do it. I think that 
was what Ms. Spartz was trying to get it.
    Ms. Parshall Perry. Yes.
    Mr. Bentz. Can we improve the arbitration device, or should 
we chuck it in the dumpster?
    Your answer?
    Ms. Parshall Perry. I think we can improve it. I think 
those confidentiality provisions are front and center in this 
debate that's going on right now. If indeed confidentiality is 
perpetuating #MeToo, then we need to make sure that we 
eliminate those. I'm not even hearing that it is a suitable 
suggestion. Professor Gilles said specifically she still 
doesn't like that opportunity.
    So, is it, in fact, that these sex harassment claims are 
subject to confidentiality provisions and, if we make sure that 
they are not implicated, everything will be fine? Or is it a 
piecemeal slice-and-dice of the FAA?
    Mr. Bentz. Correct. That would appear to be a good summary 
of where we are. Thank you so much.
    I yield back.
    Mr. Issa. Would the gentleman yield?
    Mr. Bentz. Yes, I will.
    Mr. Issa. Thank you.
    Following up on that, we have the question of 
nondisclosures at the end of the process. Because you've looked 
at this and studied it so much, if at some future time we're 
dealing with reform that is not this bill but something going 
forward, how would you deal with the fact that, in a normal 
litigation situation, the plaintiff gets the benefit of 
basically the whole company knowing about the allegation and, 
thus, people often come forward. In an arbitration, normally it 
doesn't become as public, and, therefore, you may be dealing 
piecemeal with different litigants over time.
    What would be the best way for us to consider parsing that 
to get justice for someone so that they not be alone, as though 
they're the only one, if, in fact, there are multiples within 
the company, as they often are?
    Ms. Parshall Perry. Well, I'd naturally suggest class 
actions, but we know how the Supreme Court has ruled on that. 
They say, under the FAA, class actions are not--
    Mr. Issa. I was thinking more of how do we ensure that 
someone who feels they've been wronged can, in fact, make it 
public enough in advance? Because nondisclosures sometimes 
would create a situation in which it wouldn't--and I wonder 
that because I'm hoping that we're all taking this legislation 
seriously even if we oppose its current form.
    Ms. Parshall Perry. Yes. Again, at the risk of repeating 
myself, I go back to the privacy concerns and knowing that five 
States have successfully passed legislation to that effect, to 
make sure that these contracts, just like any other contract, 
make sure there is no coercion, there is no privacy, that these 
will be as public as a matter of public litigation. I think 
that's a suitable alternative to what we have now.
    Mr. Issa. Thank you.
    Thanks to the gentleman for yielding.
    Chair Nadler. The gentleman yields back.
    Mr. Stanton.
    Mr. Stanton. Thank you very much, Mr. Chair.
    To our panel of Witnesses, my words cannot possibly express 
how deeply meaningful and impactful your testimony has been 
today, but I must begin by saying that I have a profound 
appreciation and sincere respect for each of you for sharing 
your stories, which are intensely personal, and for standing 
with moxie to expose behavior that is too often hidden from 
public view.
    Forced arbitration agreements are a piece of the systems 
and procedures designed to silence critical voices, perpetuate 
abuse, and enable predators to hold on to their positions of 
power. We are taught that light exposes truth, and it is clear 
to me that justice is rarely done in secret.
    So, I am pleased that this Committee and this Congress have 
made it a priority to address this issue in a bipartisan 
fashion to ensure that there are additional pathways to justice 
for those who experience sexual violence, harassment, and 
retaliation in the workplace.
    I have a few questions for Ms. Newton.
    Ms. Newton, you described the CEO of Louis Vuitton sending 
an email to the entire company a day after your complaint in 
court. How did that make you feel?
    Ms. Newton. It felt awful.
    Let me just briefly say, I work for the holding company 
LVMH, their American affiliate.
    It felt humiliating. I was sitting at my desk when that 
email was sent, working. I was already afraid to have filed a 
complaint against my employer while working. Sitting at my 
desk, going through my emails, doing my work, and I see it 
popped up. The whole email was basically about my case.
    It totally discredited me. As an attorney, I pride myself 
on my credibility, and it's what we hold as our value as 
attorneys, and that was completely destroyed in a second.
    Mr. Stanton. In your time at Louis Vuitton and the holding 
company, did the CEO ever issue this type of company-wide 
email?
    Ms. Newton. Never. Nothing like it. Not attacking an 
employee about reporting sexual harassment or anything near it.
    Mr. Stanton. Was it your impression at the time that the 
email was in retaliation for you filing the sexual harassment 
complaint?
    Ms. Newton. Definitely. The extent that it went to, it 
wasn't just a bland email. It was several paragraphs long, 
several sentences long. The extent it went to mischaracterize 
what had happened and the nature of my complaint was definitely 
done with an intent to not only silence me but to send a 
message to other people: We will crucify you if you report--if 
you do things like this.
    Mr. Stanton. Was it your impression this was damage control 
by the company?
    Ms. Newton. Yes.
    Mr. Stanton. If the CEO ever thought his behavior would be 
made public, do you believe he would've taken this action?
    Ms. Newton. No. I think every single move they made was 
because they knew that eventually, as they succeeded to do, 
they would get this into a closed-door proceeding.
    Mr. Stanton. Ms. Newton, you were asked to apologize to 
your harasser. Is that correct?
    Ms. Newton. Unfortunately, yes.
    Mr. Stanton. Did they explain why you had to do that?
    Ms. Newton. They said that the stalker, he couldn't sleep, 
he couldn't eat because I had confronted him about the 
harassment, and he needed to be able to do his job, and, 
therefore, I should apologize to him.
    Mr. Stanton. Has your standing at Louis Vuitton and the 
holding company been impacted since reporting your harassment?
    Ms. Newton. Since reporting it, I've received negative 
reviews. My annual salary increase went down. My bonus went 
down. I've probably been passed over for promotions to 
subsidiary companies. My career has been stalled and has just 
been put on ice, really, and potentially damaged in the future.
    Mr. Stanton. If employees were able to pursue a traditional 
lawsuit before a jury of one's peers, do you believe the 
company would be forced to take sexual harassment allegations 
seriously?
    Ms. Newton. One hundred percent. I think the fact that they 
know that eventually this will be behind a closed door 
completely colors every single action that they take in 
responding to it. They know: We will never--this will never see 
sunlight; therefore, we can do whatever we want.
    Mr. Stanton. Knowing what happened to you at Louis Vuitton 
and the holding company and the company's response, do you 
believe that other victims at the company will come forward to 
report sexual harassment or sexual violence in the workplace?
    Ms. Newton. Sorry, just so I understand your question 
correctly, are you saying other employees at LVMH will come 
forward after they--sorry, could you just rephrase?
    Mr. Stanton. No problem. I apologize. Knowing what happened 
to you and the knowledge of what happened to you--
    Ms. Newton. I see.
    Mr. Stanton. --what's going to be the impact on other 
employees who may have, sadly, similar-type claims?
    Ms. Newton. Oh, yeah, I think this is going to stop them 
from ever coming forward. This type of crucifixion, making a 
public shame out of me, is nothing that anyone would want to go 
through. It's just devastating, humiliating, and degrading. I 
think they were showing other people: If you do this, you will 
go down like she did.
    Mr. Stanton. Your courage is really amazing. Thank you for 
your testimony today.
    I yield back.
    Chair Nadler. The gentleman yields back.
    Ms. Dean.
    Ms. Dean. Thank you, Mr. Chair.
    It's been widely reported and every person, to a person, 
has shown that there is a culture in many workplaces, sadly. 
One in four women have experienced sexual harassment at work. 
Eighty-five percent of women report experiencing unwanted 
sexual behaviors in the workplace.
    We've spoken in this Committee of the legal Black hole that 
is forced arbitration. Think of the words themselves, ``forced 
arbitration.'' It's paradoxical. It's self-evident that there's 
a problem with this process. It protects companies; it hides 
predators in plain sight. Your stories have revealed that.
    I want to use my time to hear a little more from you--I was 
debating whether to call you ``victims'' or ``survivors.'' I've 
decided to call you ``four women of strength.'' I thank you for 
your immense courage to share your stories. I'm humbled by your 
strength. We here in Congress need to be humbled by your 
strength. We are obligated to do better.
    Ms. Henry, may I start with you? Something you said--many 
things you said in your testimony struck me. You shared with us 
that you, quote, ``gathered all your courage that you could 
stomach and filed a lawsuit.''
    I think people don't have any clue what that moment is 
like, let alone the moment when the door got slammed on you 
when you learned about the forced arbitration. What was that 
moment like? What was the challenge there to come forward and 
say, I've got to sue over this?
    Ms. Henry. At that point, I was feeling defeated. I don't 
like to feel defeated, especially over something like this. I 
thought, I have to do this. I have to do this for other women; 
I have to do it for myself. I have to set an example for my 
son. It's very important to me just to show my courage and do 
this.
    Ms. Dean. Well, you've done that.
    Ms. Henry. Thanks.
    Ms. Dean. A woman of strength.
    How did you feel when you read the motion to dismiss your 
lawsuit and learned of the forced arbitration clause buried in 
your paperwork?
    Ms. Henry. I was kind of just taken back because I had no 
idea what it was. I had no idea that something even existed. I 
thought in the workplace or even just in society, in general, 
that if someone does something against you that is wrong, 
illegally or however the case may be, I just thought I would 
have a right to not let this happen to me or anybody else in 
the future.
    I just--I couldn't--I was just taken back. I still am. This 
is very--I just can't believe that people are allowed to just 
disrespect other human beings.
    Ms. Dean. In fact, you said, they stole my right to a jury 
trial. Your instinct is correct. As an American citizen, you 
have a right.
    Ms. Henry. Uh-huh.
    Ms. Dean. That right was taken from you.
    To the lawyers, did you feel the same way? Did you feel as 
though your rights were stripped away from you? Not just the 
assaults, the attacks, the rape, but did you feel your 
constitutional right was taken from you?
    Ms. Newton?
    Ms. Newton. Definitely. In law school, constitutional law 
was my favorite course. My parents are immigrants here, and one 
of the things I think, coming from an immigrant family, that 
people admire all over the world is our judicial system. I 
remember my mom saying to me when we were young, in America you 
have this right; if something goes wrong, you have your right 
to a day in court. So, I felt like that was totally taken away 
from me, and no one even knew.
    Ms. Dean. You, armed with a law degree, had your right 
taken away from you.
    Ms. Newton. Yes.
    Ms. Dean. Ms. Spottiswoode?
    Ms. Spottiswoode. Thank you for the question.
    I just wanted to answer that by addressing something that a 
lot of people have said here, which is that jury trials are 
very slow and expensive. I don't actually know really what 
they're like, because I haven't experienced one, but I can tell 
you that my arbitration was very slow and very expensive.
    The cheapest thing to do, rather than trying to unburden 
our courts by forcing victims like us into arbitration, would 
be to just not assault people and harass people in your 
workplace. If we had access to jury trials, maybe, instead of 
all of us having to go through this very slow process, people 
just wouldn't Act that way as much anymore.
    Ms. Dean. Thank you. Very wise words.
    I just want to--oh, my time is up. Let me just quote Ruth 
Bader Ginsburg. In 2018, she said, ``How treacherously we have 
strayed from the principle that arbitration is a matter of 
consent, not coercion.'' How far we have strayed.
    I yield back.
    Chair Nadler. The gentlelady yields back.
    Mr. Jones.
    Mr. Jones. Thank you, Mr. Chair.
    I also want to thank my colleagues Representative Jayapal 
and Subcommittee Chair Cicilline for their leadership in 
introducing legislation to guarantee survivors of sexual 
assault and harassment their rights to justice in a court of 
law.
    Most importantly, I want to thank all of you courageous 
survivors, described accurately by my colleague as four women 
of strength, for testifying before us today.
    No one should have to experience what you have experienced. 
No one in your position or in any position should have their 
voice silenced. No one should have their access to justice 
vetoed by their assailants or by powerful corporations that 
back them. Thanks to you, we are closer than ever before to 
ensuring that no one is denied justice again.
    Professor Gilles, thank you for joining us again to shine a 
light on the injustice of forced arbitration.
    Throughout the day, we've heard harrowing testimony about 
the retaliation that so often accompanies sexual assault and 
harassment. As you know, there are both State and Federal laws 
protecting employees from retaliation for reporting harassment, 
yet it is plain that those laws have failed the survivors here 
with us today.
    How does forced arbitration make it harder to enforce 
protections against retaliation?
    Ms. Gilles. It makes it harder because we never know about 
their cases, right? You've had to subpoena these women to come 
here and tell you about these cases, because, otherwise, they 
would be barred from doing so by the provisions of their 
contract.
    So, not only does the public at large not learn about these 
issues, but regulators, policymakers, never hear about these 
issues as well. Companies are able to sweep these matters under 
the rug and shield serial sexual predators that work in these 
spaces and often work in quite high places.
    Mr. Jones. Thank you.
    Are there any claims you've heard today that you would like 
an additional opportunity to rebut?
    Ms. Gilles. Ah, thank you. Yes. So, many that I won't have 
time, although just a few, really, because I think a lot of 
what's been said has been wrong.
    So, first, just to reiterate what Tatiana just said, 
there's been a lot said about how expensive litigation is. 
Arbitration is expensive, too. It's not as though the employer 
suddenly doesn't show up in arbitration. The employer shows up, 
and they show up with all their lawyers and all their money.
    So, the structural imbalances that exist in the sort of 
David and Goliath situations that we see, those are going to be 
true in arbitration and true in litigation. So, I think it's 
wrong and I think it's misrepresentative to say that only 
litigation is a problem in terms of cost.
    The other thing I'd like to just point out is on the 
freedom of contract argument, which I could only sort of 
follow. Because the protections in this bill, as I read this 
bill, are only triggered when a survivor files a lawsuit. So, 
that means that the contract remains--the employment contract 
is still fully enforceable. The only point is that, when a 
survivor files a lawsuit, the survivor has a choice about 
whether to go into arbitration, which perhaps she chooses for 
whatever reasons are hers--she's autonomous; she can choose--or 
to go into litigation.
    I think some of the rhetoric today has tried to distract us 
from that reality, but if you read the bill, that's what the 
bill says. I think that's what we should be talking about.
    There are other things that have been said that I think are 
mischaracterizations, untruths, just distractions, right? This 
is a pretty easy question. These women are here to tell us that 
the system doesn't work for them, they don't want it, and so we 
ought to change it.
    Mr. Jones. Thank you. I agree.
    Mr. Chair, I yield--Madam Chair, I yield back.
    Ms. Dean. [Presiding.] Thank you very much.
    The gentleman yields.
    Now the gentlewoman from North Carolina, Ms. Ross, is 
recognized for 5 minutes.
    Ms. Ross. Thank you very much, Madam Chair.
    Thank you to all the Witnesses for being here today. I know 
it's difficult to talk about this topic, but it is so 
important, and you are making a difference in the lives of 
other women. I'm moved by your bravery and all that you've done 
in choosing to share your stories with Congress.
    In the United States, businesses and other institutions too 
often cover up sexual assault and harassment to maintain their 
reputations, at the risk of your reputation.
    As we've heard today and previously, forced arbitration is 
one of the key strategies these businesses and institutions use 
to silence victims of sexual violence and harassment. As long 
as forced arbitration remains an option, businesses and 
institutions will be able to abuse this mechanism to put 
profits and their reputation over yours and silence survivors 
of assault and harassment.
    Our laws should work to curb practices that enable the 
abuse of individuals like those we've heard from today.
    As you can hear, there are bells, but that doesn't have 
anything to do with this hearing.
    I'm glad that tomorrow, we are going to markup a bill to do 
just that.
    I have a couple questions for Professor Gilles. The first 
question is, what affect does the low survivor win rate in 
employment arbitration have on companies' incentives to stop or 
prevent sexual misconduct?
    Ms. Gilles. I think it must have--I don't work for a 
company, but I think if I were a company and very few women 
were even going into arbitration and the very, very brave few 
who did, who were able to go it alone and hire a lawyer to 
bring an arbitration and they still didn't win, I would start 
to feel like I could do whatever I wanted. I think that's 
probably what we're seeing.
    Now, I don't know, I'm not invited into the rooms where 
those sorts of decisions are being made, but I think it's a 
safe bet that companies are feeling quite brave and brazen in 
the ways that they could cover up pervasive and systematic 
sexual assault and harassment and discrimination in the 
workplace.
    Ms. Ross. Just as a follow-up to that, do you think it has 
the same effect on predators, on people who commit sexual 
misconduct and violence against women?
    Ms. Gilles. Again, I'm only inferring from the data that we 
have, but because, well, let me not infer. I have kids, and 
when my kids don't get in trouble, they just keep doing the 
same thing over and over again, right? The idea is that, if you 
don't hold someone accountable, they're just going to believe 
that the behavior is actually not so bad.
    The examples the women here are sort of striking, because 
these were all men in positions of power who retained those 
positions and in one instance promoted, which indicates that 
these predators are learning nothing, right? They're getting a 
slap on the wrist. There's no public accountability.
    Every company has these sexual harassment training sessions 
that I think are probably not well-attended and not really 
processed by the people who need them most. These people are 
not being taken aside and disciplined or, better yet, fired, 
right? They're not held accountable for what they've done. So, 
I imagine they, too, feel that they can do whatever they want.
    Ms. Ross. Thank you.
    To our survivors and heroines here, what kind of message do 
you think this sends to more junior people in the businesses 
where you've worked and to other institutions about what kind 
of behavior will be tolerated?
    Please pipe up as you wish.
    Ms. Newton. I can start.
    I think I had in mind those young people when I reported, 
because it was one thing for me to be going through this; I 
thought about all the girls that I've mentored over my life, 
those other students, my niece, my friends' children, and just 
thought about if I, a lawyer, an executive at a company, am not 
able to feel comfortable speaking up about these things and if 
I am shot down and attacked for doing that, what will they be 
able to do?
    So, I think that what these companies do is meant to 
silence people and make them not complain and make them keep 
quiet and just allow the harassment to continue.
    Ms. Ross. Thank you so much.
    I yield back.
    Mr. Jones. [Presiding.] The gentlelady yields.
    The Chair now recognizes the gentlelady from the great city 
of St. Louis, Missouri, Representative Bush.
    Ms. Bush. Thank you to the Chair for convening this 
hearing, and thank you as well.
    I want to sincerely thank each of our Witnesses today. I 
want you to know that strength is not only moving, but also 
saving lives. The failures in accountability for the misconduct 
and abuses you have endured are tantamount to policy violence, 
because this body has a responsibility to legislate safety and 
character in your workplaces.
    Like you, I am a survivor. I understand the trauma that you 
must relive in sharing your story. I'm proud of my colleagues 
for standing firm in demanding that these insidious arbitration 
laws are prohibited. I am also aware of the lasting harms of 
the abuse you have been through.
    You should have never had to decide between paying bills 
and speaking the truth. You should have never had to fear 
retaliation for saying what happened. You should have never had 
to worry about the impact of unwanted harassment on your 
personal lives. Know that our job as Members of Congress is to 
see you and stand with you to build a society where what you 
endured never happens again to another person.
    Professor Gilles, how does the use of arbitration clauses 
in the workplace prevent a company from establishing procedures 
to totally investigate and meaningfully address reports of 
sexual harassment?
    Ms. Gilles. Thank you for the question.
    So, I think that what happens when an employee complains 
about sexual harassment on the job and it starts an 
arbitration, again, those are rare situations, but let's talk 
about those unicorn situations--the employer becomes aware that 
there's a problem. They're participating in the arbitration. 
Then Employee 2 comes forward sometime later and is complaining 
about the same sorts of pervasive, structural problems in the 
workplace. At that point, or maybe it takes until Employee 3 or 
Employee 4, but, at some point, one would imagine that an 
employer who is hearing these stories, understanding the 
dynamics of the office, would come to understand: We have a 
problem, and we need to do something about the problem.
    I think the reality is that employers are forcing these 
issues into arbitrations so that they don't have to be 
accountable, so they don't have to change policies, so that 
they can just do things as they've always done them, business 
as usual. Because there's nothing that the arbitrator can do 
that can force an employer to take on any systemic changes in 
the workplace.
    So, I think these provisions really do stop or halt or 
prevent any efforts to make the workplace safe for all people.
    Ms. Bush. Yes. Thank you. With that, we understand that is 
why these sexual harassment allegations need to reach to the 
public sphere. Thank you.
    Ms. Henry and Ms. Dushku, both of you were sexually 
harassed or violated by a man who thought he could get away 
with anything. This behavior does not just occur in a vacuum, 
nor does it occur overnight, as colleagues have mentioned.
    You haven't been allowed to tell your stories before today. 
I'd like to use my time to give each of you the opportunity to 
share what it means to you personally to finally have a chance 
to speak publicly about such personal and traumatic 
experiences, including the retaliation you suffered because of 
the arbitration clauses in your employment contracts.
    Let me say before you start, I'm truly sorry for what 
you've had to endure.
    Ms. Henry?
    Ms. Henry. I just want to make sure I understand the 
question. You're breaking up just a little bit.
    Ms. Bush. Oh, I'm sorry. Just being able to publicly share 
about your personal experience, being that this is the first 
day you've been able to talk about it. Is there anything that 
you would like to say, that you would just share publicly, 
since this is your first time sharing your personal traumatic 
experience?
    Ms. Henry. I just hope at some point that the person that 
did this to me has to feel as humiliated as I feel and how 
ashamed that I felt during this whole process.
    I am very honored to be here, and I really appreciate 
having this chance. Hopefully in the future no one has to 
endure such horrific acts as we have all sitting here today.
    So, I just hope that he just can feel the pain that I have 
felt.
    Ms. Bush. Ms. Dushku, would you also--
    Ms. Dushku. Yes. Thank you.
    On the one hand, as Ms. Henry said, it's very liberating, 
and, at the same time, after so many years of being in silence, 
I have to say it affects me. I still don't, in some ways, know 
that I'm allowed to go on from here and continue speaking 
without fear of future retaliation even now.
    As others have said, as Ms. Newton said as well, I am proud 
and I do feel re-empowered to be able to show my niece, my 
sons, and my three beautiful stepdaughters that you don't have 
to accept when the rules are stacked against you and you can 
try to change the rules. I hope that we can do that here today.
    I'm just in awe of all the other women there today, and I 
hope to know you better. I know that we can all heal from this, 
but the healing will come from action to protect us and protect 
future survivors and victims.
    Thank you.
    Ms. Bush. Thank you.
    With that, I yield back.
    Mr. Jones. The gentlelady yields.
    This concludes today's very powerful hearing. I want to 
thank the Witnesses again for sharing your incredible stories 
and to express, yet again, how we are standing with you in this 
moment and moving forward.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the Witnesses or 
additional materials for the record.
    Mr. Jones. Without objection, the hearing today is 
adjourned.
    [Whereupon, at 2:12 p.m., the Committee was adjourned.]
   
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