[Congressional Record Volume 168, Number 24 (Monday, February 7, 2022)]
[House]
[Pages H983-H993]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ENDING FORCED ARBITRATION OF SEXUAL ASSAULT AND SEXUAL HARASSMENT ACT
OF 2021
Mr. NADLER. Madam Speaker, pursuant to House Resolution 900, I call
up
[[Page H984]]
the bill (H.R. 4445) to amend title 9 of the United States Code with
respect to arbitration of disputes involving sexual assault and sexual
harassment, and ask for its immediate consideration in the House.
The Clerk read the title of the bill.
The SPEAKER pro tempore. Pursuant to House Resolution 900, in lieu of
the amendment in the nature of a substitute recommended by the
Committee on the Judiciary printed in the bill, an amendment in the
nature of a substitute consisting of the text of Rules Committee Print
117-29 is adopted and the bill, as amended, is considered read.
The text of the bill, as amended, is as follows:
H.R. 4445
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled.
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ending Forced Arbitration of
Sexual Assault and Sexual Harassment Act of 2021''.
SEC. 2. PREDISPUTE ARBITRATION OF DISPUTES INVOLVING SEXUAL
ASSAULT AND SEXUAL HARASSMENT.
(a) In General.--Title 9 of the United States Code is
amended by adding at the end the following:
``CHAPTER 4--ARBITRATION OF DISPUTES INVOLVING SEXUAL ASSAULT AND
SEXUAL HARASSMENT
``Sec.
``401. Definitions.
``402. No validity or enforceability.
``Sec. 401. Definitions
``In this chapter:
``(1) Predispute arbitration agreement.--The term
`predispute arbitration agreement' means any agreement to
arbitrate a dispute that had not yet arisen at the time of
the making of the agreement.
``(2) Predispute joint-action waiver.--The term `predispute
joint-action waiver' means an agreement, whether or not part
of a predispute arbitration agreement, that would prohibit,
or waive the right of, one of the parties to the agreement to
participate in a joint, class, or collective action in a
judicial, arbitral, administrative, or other forum,
concerning a dispute that has not yet arisen at the time of
the making of the agreement.
``(3) Sexual assault dispute.--The term `sexual assault
dispute' means a dispute involving a nonconsensual sexual act
or sexual contact, as such terms are defined in section 2246
of title 18 or similar applicable Tribal or State law,
including when the victim lacks capacity to consent.
``(4) Sexual harassment dispute.--The term `sexual
harassment dispute' means a dispute relating to any of the
following conduct directed at an individual or a group of
individuals:
``(A) Unwelcome sexual advances.
``(B) Unwanted physical contact that is sexual in nature,
including assault.
``(C) Unwanted sexual attention, including unwanted sexual
comments and propositions for sexual activity.
``(D) Conditioning professional, educational, consumer,
health care or long-term care benefits on sexual activity.
``(E) Retaliation for rejecting unwanted sexual attention.
``Sec. 402. No validity or enforceability
``(a) In General.--Notwithstanding any other provision of
this title, at the election of the person alleging conduct
constituting a sexual harassment dispute or sexual assault
dispute, or the named representative of a class or in a
collective action alleging such conduct, no predispute
arbitration agreement or predispute joint-action waiver shall
be valid or enforceable with respect to a case which is filed
under Federal, Tribal, or State law and relates to the sexual
assault dispute or the sexual harassment dispute.
``(b) Determination of Applicability.--An issue as to
whether this chapter applies with respect to a dispute shall
be determined under Federal law. The applicability of this
chapter to an agreement to arbitrate and the validity and
enforceability of an agreement to which this chapter applies
shall be determined by a court, rather than an arbitrator,
irrespective of whether the party resisting arbitration
challenges the arbitration agreement specifically or in
conjunction with other terms of the contract containing such
agreement, and irrespective of whether the agreement purports
to delegate such determinations to an arbitrator.''.
(b) Technical and Conforming Amendments.--
(1) In general.--Title 9 of the United States Code is
amended--
(A) in section 2, by inserting ``or as otherwise provided
in chapter 4'' before the period at the end;
(B) in section 208--
(i) in the section heading, by striking ``Chapter 1;
residual application'' and inserting ``Application''; and
(ii) by adding at the end the following: ``This chapter
applies to the extent that this chapter is not in conflict
with chapter 4.''; and
(C) in section 307--
(i) in the section heading, by striking ``Chapter 1;
residual application'' and inserting ``Application''; and
(ii) by adding at the end the following: ``This chapter
applies to the extent that this chapter is not in conflict
with chapter 4.''.
(2) Table of sections.--
(A) Chapter 2.--The table of sections for chapter 2 of
title 9, United States Code, is amended by striking the item
relating to section 208 and inserting the following:
``208. Application.''.
(B) Chapter 3.--The table of sections for chapter 3 of
title 9, United States Code, is amended by striking the item
relating to section 307 and inserting the following:
``307. Application.''.
(3) Table of chapters.--The table of chapters for title 9,
United States Code, is amended by adding at the end the
following:
``4. Arbitration of disputes involving sexual assault and sexual
harassment...............................................401''.....
SEC. 3. APPLICABILITY.
This Act, and the amendments made by this Act, shall apply
with respect to any dispute or claim that arises or accrues
on or after the date of enactment of this Act.
The SPEAKER pro tempore. The bill, as amended, shall be debatable for
1 hour equally divided and controlled by the chair and ranking minority
member of the Committee on the Judiciary or their respective designees.
After 1 hour of debate, it shall be in order to consider the further
amendment printed in part B of House Report 117-241, if offered by the
Member designated in the report, which shall be considered read, shall
be separately debatable for the time specified in the report equally
divided and controlled by the proponent and an opponent, and shall not
be subject to a demand for a division of the question.
The gentleman from New York (Mr. Nadler) and the gentlewoman from
Minnesota (Mrs. Fischbach) each will control 30 minutes.
The Chair recognizes the gentleman from New York (Mr. Nadler).
General Leave
Mr. NADLER. Madam Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
and insert extraneous material on H.R. 4445.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from New York?
There was no objection.
Mr. NADLER. Madam Speaker, I yield myself 3 minutes.
Madam Speaker, H.R. 4445, the Ending Forced Arbitration of Sexual
Assault and Sexual Harassment Act, would restore access to justice for
survivors of sexual assault or sexual harassment who are forced to
settle their disputes against their harassers and abusers in a private
system of arbitration that is often stacked against them.
Arbitration was originally developed as an alternative to the court
system for parties of relatively equal bargaining power to enter into
voluntarily. In recent decades, however, forced arbitration clauses
have become ubiquitous in our lives, largely in the form of take-it-or-
leave-it contracts between very large companies and individual
consumers. As a result, these clauses have rendered our court system,
in which plaintiffs have far stronger protections, inaccessible to far
too many.
Nowhere is that trend more apparent or problematic than in the
workplace. It is projected that, by 2024, 80 percent of private-sector
workers will be forced to sign an arbitration clause when accepting
employment. And consider that, over the past 5 years, employers
prevailed over their employees in 98 percent of these arbitration
cases. But these numbers cannot capture the true human toll of forced
arbitration.
Last November, the Judiciary Committee heard powerful testimony from
four survivors of sexual assault and sexual harassment about their
harrowing experiences and the deep wounds they continue to carry with
them to this day. It was a hearing none of us will forget, and we
appreciate these brave women coming forward and sharing their stories.
Each of these women was subject to horrific treatment by a person
with power over their lives. Then, when they sought to hold their
assailants accountable in court, they were forced to relive the trauma
of their harassment and assault to find that their only recourse was a
secretive arbitration process that was stacked against them.
Forced arbitration clauses, buried deep in the fine print of the
paperwork required as a condition of employment, have bound workers to
a system in which they are nearly guaranteed to fail, foreclosed the
possibility of ever having their day in court, and in almost every case
taken away their right even to discuss their experience.
The company gets to pick the judge and the jury, truncate the
discovery process, choose the law applied, and
[[Page H985]]
prevent all appeals. When the company wins, it can request that the
victim pay its attorney's fees, and it can ensure that misconduct never
sees the light of day.
H.R. 4445 removes these barriers to justice for survivors of sexual
assault or sexual harassment by giving them a real choice of whether to
go to court or to arbitrate their claim.
In doing so, this legislation ends this unjust and, frankly,
repulsive system in which American companies are better off retaliating
against victims of sexual assault than taking responsibility and
holding perpetrators responsible for their horrific actions.
Madam Speaker, I include in the Record a letter to Members of
Congress dated February 4, 2022, and a letter to House leadership dated
February 7, 2022, both from organizations in support of H.R. 4445.
February 4, 2022.
Re Pass the Ending Forced Arbitration of Sexual Assault and
Sexual Harassment Act of 2021 (HR. 4445).
Dear Members of Congress: On behalf of the undersigned
organizations, we write in support of the Ending Forced
Arbitration of Sexual Assault and Sexual Harassment Act of
2021 (H.R. 4445), a bill that would provide important new
opportunities for individuals who experience sexual
harassment and assault to seek justice without being forced
into closed-door and secretive forced arbitration
proceedings, where the deck is too often stacked against
them.
Today, individuals are routinely forced to sign an
arbitration clause to resolve disputes as a condition of
obtaining a job or purchasing a good or service, often
through language buried in fine print. Many individuals who
sign such documents have no idea they have waived the ability
to enforce their rights in court. Arbitrators are often
chosen and paid by companies. There is no public record of
the proceedings or the outcome, and rarely an opportunity to
appeal the arbitrator's decision. Many who come forward with
reports of sexual harassment or sexual assault, cannot afford
legal counsel. The arbitration clause may force them to bear
some of the significant costs of the arbitration. The
resolution of their disputes may fail to make them whole for
the harm they have suffered.
The lack of public accountability enabled by forced
arbitration has played a harmful role in allowing sexual
harassment and assault to persist in the shadows. In the four
years since #MeToo went viral, thousands of individuals,
disproportionately women, have come forward to share their
experiences--many several years after the fact--and to demand
justice. When women and all those who have experienced
assault and harassment share their stories, it gives others
the courage to come forward as well. But when women who
report such conduct are forced into arbitration, that
secretive process with no public accountability further
silences survivors, and employers and companies can continue
to employ and protect serial sexual harassers.
The Ending Forced Arbitration of Sexual Assault and Sexual
Harassment Act is an important step towards restoring power
to survivors of sexual assault and sexual harassment by
ensuring they will not be forced into arbitration. It is
admittedly a partial solution, as no individual should be
forced to waive their ability to fully enforce their rights
to be free from other forms of unlawful harassment,
discrimination, and exploitation, whether as workers, as
consumers, as patients, or as students. We are therefore
hopeful that as a complement to this bill, Congress will
quickly take up and pass the FAIR Act (H.R. 963) and
Restoring Justice for Workers Act (H.R. 4841), which would
ensure that companies can no longer circumvent the legal
system by forcing individuals into arbitration. But the
Ending Forced Arbitration of Sexual Assault and Sexual
Harassment Act represents an important partial restoration of
individuals' rights to seek accountability and justice.
Accordingly, we urge you to support this legislation. If you
have any questions, please contact Emily Martin
([email protected]) at the National Women's Law Center.
Sincerely,
National Women's Law Center, National Employment Law
Project, National Employment Lawyers Association.
____
February 7, 2022.
Dear Speaker Pelosi and Minority Leader McCarthy: We, the
undersigned groups, support passage of H.R. 4445, the Ending
Forced Arbitration of Sexual Assault and Sexual Harassment
Act of 2021. This bipartisan bill would empower survivors of
sexual assault and sexual harassment by allowing survivors of
sexual harassment and sexual assault to file a case in court
rather than be forced into arbitration. Survivors of sexual
assault and sexual harassment would be able to hold
perpetrators and institutions accountable outside of closed-
door arbitration proceedings and shine light on systemic
issues of wrongdoing. According to actor Eliza Dushku, one of
several witnesses who testified under the protection of
congressional subpoenas, at a powerful hearing last November
on H.R. 4445, forced arbitration ``protects the harassers,
the abusers, the corporations, and it isolates the victims .
. . [it] creates a culture of silencing.''
Many of the undersigned groups oppose the use of forced
arbitration against all consumers and workers. Predispute
binding arbitration clauses and class action waivers,
together known as forced arbitration clauses, are typically
buried in ``take-it-or-leave it'' agreements that waive an
individual's fundamental rights to seek accountability in
court when they are hurt or when their rights are violated.
These clauses deprive people of the opportunity to hold
wrongdoers accountable, no matter how widespread or egregious
the misconduct may be; and they also allow all types of
abuse, discrimination, and fraud to go unchecked.
In the privatized system of forced arbitration, there is no
judge or jury, and the right to appeal is severely limited.
Arbitrators do not have to follow the law or precedent. And
proceedings take place behind a veil of secrecy that
insulates perpetrators from public accountability. That is
why thousands of Google workers around the world walked off
the job in late 2018 to protest, among other things, Google's
use of forced arbitration clauses to hide mistreatment of
workers who alleged harassment and discrimination against
high-level executives. Also in 2018, in a rare gesture of
bipartisanship, all 56 attorneys general (in every state, the
District of Columbia, and territories) urged Congress to
immediately enact legislation that would ban forced
arbitration for sexual harassment claims. The letter said,
``Victims of such serious misconduct should not be
constrained to pursue relief from decision makers who are not
trained as judges, are not qualified to act as courts of law
and are not positioned to ensure that such victims are
accorded both procedural and substantive due process.''
The Senate companion bill, which passed the Senate
Judiciary Committee on a voice vote, has ten Republican co-
sponsors, and support continues to grow. Conservative
commentator and women's rights advocate Gretchen Carlson, who
has been a vocal opponent of the way forced arbitration
clauses are used to silence victims of sexual harassment,
recently said that passing H.R. 4445 ``will be a victory for
American workers and I am incredibly optimistic this is going
to be the law of the land.''
H.R. 4445 has widespread, bipartisan support inside and
outside the walls of Congress. We urge all Members of the
House to vote for this important legislation. Your staff
should feel free to reach out to Remington A. Gregg should
you have any questions.
Sincerely,
American Association for Justice, American Civil Liberties
Union, Alliance for Justice, American Family Voices,
Americans for Financial Reform, Center for Disability Rights,
Center for Economic Justice, Center for Justice & Democracy,
Citizen Works, Consumer Action.
Consumer Federation of America, Consumer Reports, Consumer
Watchdog, Consumers for Auto Reliability and Safety, Center
for Progressive Reform, Disability Rights Education & Defense
Fund, Earthjustice, Economic Policy Institute, Essential
Information, FORGE, Inc.
Googlers for Ending Forced Arbitration, Impact Fund,
Justice for Migrant Women, The Leadership Conference on Civil
and Human Rights, Maryland Consumer Rights Coalition, Mazzoni
Center, National Association of Consumer Advocates, National
Black Justice Coalition, National Consumer Law Center (on
behalf of its low income clients), National Consumers League.
National Disability Rights Network (NORN), National
Employment Law Project, National Organization for Women,
People's Parity Project, Public Citizen, Public Good Law
Center, Public Law Center, SC Appleseed Legal Justice Center,
Service Employees International Union (SEIU), Texas Watch.
The Army of Survivors, URGE: Unite for Reproductive &
Gender Equity, Women Employed, Woodstock Institute, Workplace
Fairness, YWCA USA.
Mr. NADLER. I thank my colleagues, Representatives Bustos, Griffith,
Jayapal, and Buck, for their leadership on this issue. I urge my
colleagues to support this bipartisan legislation, and I reserve the
balance of my time.
Mrs. FISCHBACH. Madam Speaker, I yield myself such time as I may
consume, and I thank my colleague from New York for yielding me the
customary 30 minutes.
We are here today to discuss H.R. 4445. Sexual harassment and sexual
assault are despicable actions. Victims of sexual harassment and
assault must have their claims heard, and they should not be silenced
or intimidated into silence.
The Judiciary Committee heard important testimony from victims of
sexual harassment and assault. It took real courage for those victims
to tell their stories to us. What those women, and many more women
around the country, have had to face is terrible, and sexual harassment
should not be tolerated.
H.R. 4445 would not make victims better off. And no matter how well-
intentioned the bill may be, it raises real policy concerns.
The committee received testimony from experts explaining the bill's
[[Page H986]]
flaws. For example, this bill's supporters seem to assume that all
arbitration is secret, that arbitration automatically keeps victims
from going to the authorities or publicizing their experiences.
That is not accurate. Arbitration is not intrinsically secret or
otherwise confidential. Put simply, agreeing to resolve a case outside
of court is different than agreeing to silence.
That distinction matters today because much of the argument for this
bill comes from concerns about secrecy rather than whether justice can
be served in the arbitration context.
Despite that emphasis, H.R. 4445 does not actually address
confidentiality or nondisclosure agreements. Even if this bill is
enacted, it is still possible that separate contract provisions could
be used to impose confidentiality or keep details about an employer
under wraps.
But in all likelihood, this bill would effectively end most
arbitration in these contexts, even when arbitration would benefit a
victim, because the bill fundamentally changes an arbitration clause
from a mutual commitment to use an alternative dispute resolution into
a one-sided election for an injured party.
If H.R. 4445 becomes law, contracts will be far less likely to
include the option to arbitrate. If parties cannot agree in advance to
arbitrate, the plaintiffs may never have access to arbitration. These
unintended consequences will have real-world implications, especially
for victims who lack deep pockets or do not have the possibility for a
high-dollar settlement that some high-profile cases can obtain.
Lawsuits are often long and expensive, and big corporations have more
resources to litigate than most victims. Litigation can be harrowing
for victims who, in traditional litigation, must submit to rigorous
discovery, depositions, or perhaps even the challenges of a public
trial. And it may even be harder for victims to tell their stories in
litigation and get justice, given the rules of evidence that may apply.
Democrats cast aside these concerns, and they ignore how arbitration
is generally a good way to resolve disputes.
Why are some in Congress so intent on taking this legislation forward
today? For years, Democrats have tried to gut arbitration agreements
for all kinds of different claims and plaintiffs. If Democrats had
their way, everyone--from consumers to civil rights plaintiffs, to
those with antitrust claims, to individuals using financial service
products, and others--would not be able to contract in advance to
resolve disputes through arbitration. Instead, they would be forced
into the courts.
Congress should stand ready to improve the legal system, but we must
make sure that whatever Congress does will actually be an improvement.
What we have before us today is Congress changing existing and agreed-
to contracts.
I have real concerns about government retroactively nullifying
existing contractual agreements, no matter how well-intentioned it is.
I urge you all to carefully consider the ramifications of H.R. 4445.
Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 4 minutes to the gentlewoman from
Illinois (Mrs. Bustos), the sponsor of this bill.
Mrs. BUSTOS. Madam Speaker, I rise to speak enthusiastically in
support of my bill, the Ending Forced Arbitration of Sexual Assault and
Sexual Harassment Act.
Five years ago, The Washington Post published a story that shocked me
to my core. Madam Speaker, 69,000 women were suing Sterling, Inc., for
sexual harassment, sexual assault, and sexual discrimination. Sterling
is the parent company of Kay and Jared Jewelers.
And, yes, I did say 69,000. I had to double-check that over and
over--not 69, not 6,900--69,000 women.
``If you didn't do what he wanted with him, you wouldn't get your''--
preferred--``store or raise.'' That is what Sanya Douglas, a former
employee, testified.
``A boozy, no-spouses-allowed `sex fest,' where attendance was
mandatory and women were aggressively pursued, groped, and harassed.''
That is how meetings at the company were described.
``You were meat, being shopped.'' That is how a former employee
described her workplace.
Each story was more disturbing than the story before it: managers
demanding sexual acts in exchange for employment benefits; company
events where women were expected to undress publicly. In one story, a
former employee attended an overnight meeting where she woke up with
her underwear pushed down to her ankles, a manager raping her.
This type of sexual perverseness in the workplace went on for years,
and it all stayed secret. And the reason for that secrecy? Because of
one single legal clause hidden deep down in these women's
employment paperwork, a clause that says if a claim arises between an
employer and an employee, it must go to arbitration, and taking a case
like this to court is prohibited.
My bill would make it illegal to enforce agreements that mandate
third-party arbitration, which is a type of legal dispute resolution
that is conducted behind closed doors and often favors the employer.
Seems simple, right? Well, that one tiny clause protected a company
of abusers and silenced those 69,000 women just at Sterling, Inc. That
is just one single company we are talking about.
But the stories go on, and the bad actors aren't just at workplaces.
While 60 million--that is 60 million--Americans are working under these
forced arbitration clauses through their employers, the real number of
people impacted by this incredibly common pitfall is huge. Many more
millions of Americans have signed away their rights through property
leases, ride-share applications, moving companies, nursing homes,
grocery deliveries.
That terms and conditions box that we have all simply checked off
after downloading an app or hiring a service might just have an
arbitration clause hiding in it, ready to strip away your right to go
to court if you have been sexually harassed or sexually assaulted and
you choose to go to court.
{time} 1715
While some companies have already eliminated this abusive practice--
thank you to them--it is time to do away with these legal traps for
good.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment
Act will invalidate any forced arbitration clause in any contract or
agreement in the case of sexual assault or harassment.
And I am proud to say that my bill has widespread support among
Republicans and Democrats over at the Senate and here at the House.
I thank those that have helped us get here today. I thank Pramila
Jayapal, Morgan Griffith, Ken Buck, David Cicilline, Chairman Nadler,
Senators Gillibrand, Lindsey Graham and Dick Durbin, and our fearless
champion on this, Gretchen Carlson.
I urge my colleagues to support this bill, and I look forward to the
day when our sexual assault survivors can have their day in court.
Mrs. FISCHBACH. Madam Speaker, I yield 2 minutes to the gentleman
from Virginia (Mr. Griffith).
Mr. GRIFFITH. Madam Speaker, I rise today in support of H.R. 4445,
the Ending Forced Arbitration of Sexual Assault and Sexual Harassment
Act.
I believe pre-dispute arbitration agreements are useful in some
circumstances. They can allow common, foreseeable disagreements to be
resolved quickly and efficiently, but we must acknowledge in the case
of sexual assault and sexual harassment, nobody signs on to an
employment agreement thinking that oh, I am going to be sexually
harassed or I am going to risk sexual abuse. They don't sign up for
that. And most of these contracts, Madam Speaker, are what we call
adhesion contracts. You have to accept it.
And what often happens is there will be a couple of pages that have
all the big items: Terms of the employment, salary, promotion,
vacation. And then they will incorporate a handbook. The handbook will
then have buried in it language that says all disputes must go to
mandatory arbitration. And oftentimes the people who are doing the
arbitrating aren't lawyers. The rules of evidence aren't applied. The
rules of law are not applied. It is just how they feel after they hear
everything.
This has created a situation that, related to sexual assault and
sexual harassment, is unconscionable. It shocks
[[Page H987]]
the conscience. And in fairness, it is a violation of public policy, in
my opinion, and should be eliminated as part of a contract.
I am surprised courts haven't already come to that conclusion, but
instead of having each court in each of the States and territories make
that decision, this act will do it once and for all, and we will have
done our jobs to make sure that in these egregious situations the
individual who is making the claim and who has probably been assaulted
or has been harassed or has some kind of a valid claim will have an
opportunity to go to court or have an opportunity to go to binding
arbitration, if that is what they choose, but they will have a choice
instead of having to go in front of company-picked arbiters who will
make a decision for them that will affect them the rest of their lives.
Now, I will tell you that it is important that we move forward with
this bill, and it looks like things are going well, but you never know.
But I will also tell you that there has been an allegation that it is
retroactive--and that is not accurate--as to cases currently pending.
It is accurate as to contracts currently signed.
Mr. NADLER. Madam Speaker, I yield 2 minutes to the gentlewoman from
Washington (Ms. Jayapal).
Ms. JAYAPAL. Madam Speaker, this is a landmark day. H.R. 4445, the
Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act,
will ensure that tens of millions of people are no longer silenced in
instances where there is sexual harassment and sexual assault.
These forced arbitration agreements require that people with disputes
against a company use a secretive, one-sided mediation process instead
of the judicial system. Sexual assault and sexual harassment survivors
with claims against a company are stripped of the right to decide how
to pursue accountability for their perpetrator. It is a lose-lose
scenario. People are left with little alternative but to sign these
agreements, and yet, they often face retaliation and backlash when they
are pursuing their claims.
This bipartisan bill is essential for survivors like Tatiana
Spottiswoode, who bravely testified under the protection of a friendly
subpoena at a House Judiciary Committee hearing. Tatiana needed that
protection because forced arbitration took away all of her rights to
speak publicly about the severe harassment that she had endured from
her boss and her abuser, former CEO of Afiniti, Zia Chishti. At the
hearing, Tatiana testified that ``the person who changed my life
forever continues to abuse me because forced arbitration gives him the
power to do it in secret.''
Tatiana's freedom to discuss her experiences publicly had real
impact. Mr. Chishti was finally fired, and the former Prime Minister of
the U.K. resigned from the advisory board of her abuser's company. Her
story, and countless others like hers, show why this bill is so
critical.
I am so proud to colead this bill with the incredible Representative
Cheri Bustos. And I thank Representative Bustos and Representative
Morgan Griffith and Representative Ken Buck for their leadership, as
well. No one should have to endure what happened to Tatiana and so many
others like her. We have an opportunity in the House of Representatives
to set this right for millions of brave survivors.
Vote ``yes'' to pass H.R. 4445.
Mrs. FISCHBACH. Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the
distinguished gentleman from New York (Mr. Jeffries).
Mr. JEFFRIES. Madam Speaker, I thank the distinguished chair of the
House Judiciary Committee for yielding and for his leadership. I thank
my good friend and colleague Representative Cheri Bustos for
her leadership.
The people of America, the women of America have a right to be free
of sexual harassment. The women of America have a right to be free of
sexual assault. The women of America have a right to be free of a
hostile work environment. They deserve their day in court.
The process and practice of forced arbitration undermines these
rights without providing an adequate remedy. The American people are
being hoodwinked. The American people are being bamboozled. The
American people are being led astray by forced arbitration.
This practice of forced arbitration is unfair, unjust, unacceptable,
unconscionable, and un-American.
H.R. 4445 will make it unlawful.
I urge strong support for this legislation so that liberty and
justice for all can prevail.
Mrs. FISCHBACH. Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 1 minute to the gentleman from
Georgia (Mr. Johnson).
Mr. JOHNSON of Georgia. Madam Speaker, I thank the chairman for
allowing me to speak, and I want to commend my colleague,
Representative Cheri Bustos, for introducing this very important
legislation.
It is a travesty of justice for a woman to be subjected to sexual
harassment and even sexual assault on the job. Oftentimes, it takes
place in a job setting where there is a culture of sexual harassment
and sexual assault.
And when these women find after they have been assaulted that they
are barred from going to court because somehow they have been
hoodwinked into a forced arbitration agreement with their employer,
they are surprised because at that point they have been assaulted for a
second time because when they go into arbitration you often find that
the deck is stacked against the victim in favor of the perpetrator.
This legislation gets at that problem by making those kinds of
agreements unenforceable. I fully support this legislation. I would ask
all of my colleagues to support it. It is good, commonsense
legislation.
Justice is all that is asked for.
Mrs. FISCHBACH. Madam Speaker, I yield 2 minutes to the gentleman
from Florida (Mr. Gaetz).
Mr. GAETZ. Madam Speaker, I thank the gentlewoman for yielding.
For the fourth consecutive year I rise as one of the few but faithful
Republicans in strong support of this good legislation.
Here is the question presented: Should sexual harassers who work for
big businesses get to pick their juries in advance? I think that the
populist, nationalist, right approach is to believe that the Article
III courts that we have set up for any and all function as the proper
venue.
But for tens of millions of American workers, that courthouse door is
locked. It is closed. It is inaccessible. The result is that a system
exists for concierge justice, private-sector justice.
The evidence before the Judiciary Committee undeniably is that big
business wins more cases, shuts down more awards, and is able to reduce
awards in the arbitration setting as opposed to the setting that
anybody else would be able to enter in a taxpayer-funded court. That is
wrong.
We have all heard about the fine print in this country. No one reads
the fine print. But the fine print shouldn't be a reason that someone
is more likely to have to endure sexual harassment in the workplace or
more likely to evade consequence as the result of predatory behavior.
I especially thank the majority for incorporating a number of the
minority's views to make this bill stronger and more likely to become
law, and I sincerely hope that I am not here for a fifth year
advocating for its passage again.
Mr. NADLER. Madam Speaker, I yield 3 minutes to the gentlewoman from
Texas (Ms. Jackson Lee), a distinguished member of the Judiciary
Committee.
Ms. JACKSON LEE. Madam Speaker, I thank the distinguished chairman
for his leadership, and I thank my distinguished friend from Illinois,
Congresswoman Bustos for her constant determination.
It is wonderful that H.R. 4445 is restoring freedom and justice to
women. It is a bipartisan piece of legislation that will not allow any
pre-dispute arbitration agreement or pre-dispute joint action waiver to
be valid or enforceable with respect to a case which is filed under
Federal, Tribal, or State law and relates to a sexual assault dispute
or sexual harassment dispute.
I am glad to hear friends on the other side, as this is a bipartisan
bill, acknowledge the fact that this is an absolute injustice; an
injustice that befalls a certain segment of the population, and that is
women.
One of the cases that is most stark is the one of Stefani Bambace.
Many witnesses came before us in the Judiciary
[[Page H988]]
Committee. Witness after witness gave us horror stories of isolation
and fear and the absolute inability, because of the fine print, to do
anything about it.
Stefani Bambace alleged that she worked in a sexually charged and
hostile work environment, including being subjected to sexually
explicit language from her employer, sexual advances and groping. Let
me say that again. Touching in her space from her employer, sexual
advances and groping and explicit images. How can you work as a
professional or anyone? Think of the levels of work that women are in;
from domestic to as high a level as scientists and CEOs. But yet, they
are subjected to this kind of behavior.
According to Ms. Bambace's petition, she complained to human
resources to no avail about the harassment. And guess what her relief
was? Guess what empathy was shown? Guess what comfort and reforming the
system was? It was her being fired. That is right. She was fired. How
many stories of women are there, that are yet not told, who were fired?
And so this agreement of which my colleague has worked on, and we are
pleased in the Judiciary Committee to be part of moving this
legislation, this will end these arbitration agreements that are snuck
into a packet of materials that you sign.
It is imperative we pass it, but more importantly Madam Speaker, it
is imperative that it is passed in the Senate because it is bipartisan,
but it is signed by the President and becomes law.
I thank Ms. Bambace and all of the witnesses that came before us.
They sacrifice, they suffered, but yet today, hopefully, will be an
announcement, a pronouncement of freedom and justice for women who have
struggled with this all of the time.
H.R. 4445 is a relief that is a long time in coming, and it should
move away from blind, silent, quiet agreements that no one knows what
it is. Freedom and justice for women in the workforce today.
Madam Speaker, I rise to speak in strong support of H.R. 4445, the
Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.
This bill will amend Title 9 of the United States Code, empowering
survivors of sexual assault and harassment by restoring their access to
justice and public accountability under the law.
By ending forced arbitration in lawsuits involving these claims,
survivors of sexual assault or sexual harassment are empowered with
making the decision on whether they wish to pursue legal action against
their assailants which often includes going to court to arbitrate their
claims.
It is estimated that 60 million Americans have signed away their
right to seek real justice and most don't realize it until they try to
get help.
H.R. 4445 will not allow any pre-dispute arbitration agreement or
predispute joint-action waiver to be valid or enforceable with respect
to a case which is filed under Federal, Tribal, or State law and
relates to a sexual assault dispute or a sexual harassment dispute.
In the Judiciary markup which brought this bill to the floor,
survivors of sexual harassment and sexual assault shared their stories
with the committee about their devastating experiences and the
subsequent arbitration process they were forced to endure as a
condition of their employment.
The #MeToo movement chipped away at the culture of secrecy that
protects predators and silences survivors.
Ending mandatory arbitration has the power to ensure that survivors
of sexual harassment and discrimination in the workplace have their
voices heard.
For example, in Bambace v. Berry Y&V Fabricators, LLC, Stefani
Bambace alleged that she worked in a sexually charged and hostile work
environment, including ``being subjected to sexually explicit images
from her employer, sexual advances, and groping.''
According to her petition, she complained to Human Resources about
the harassment and was fired three weeks later.
She filed a lawsuit alleging violations of Chapter 21 of the Texas
Labor Code.
Like more than half of non-unionized American workers, Bambace was
subject to an employer promulgated arbitration agreement.
These arbitration agreements are often snuck into a packet of
materials employers give employees on their first day of employment to
sign and they are rarely negotiated or even discussed.
In a well-reasoned opinion in Bambace, the Court held that the
arbitration agreement, which required the Plaintiff to litigate sexual
harassment claims in confidential and binding arbitration, violated
public policy, injured the public good, and was therefore void and
unenforceable.
Critically, the Court further rejected Defendant's argument that the
arbitrator, not the Court, should determine whether the sexual
harassment claims were subject to arbitration.
Fortunately, in the Bambace case Harris County Judge Lauren Reeder
understood that cases such as these should be determined by a court,
rather than an arbitrator irrespective of whether the agreement
purports to delegate such determinations to an arbitrator.
This is just one story out of millions where forced arbitration
agreements attempt, and usually succeed, to silence sexual assault and
sexual harassment victims.
These forced ``agreements'' strip survivors of the right to decide
how to pursue accountability of their predators.
Instead, these survivors' stories are heard in secret, behind closed
doors, and do little to nothing to stop the systematic abuse from
occurring again.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment
Act of 2021 will ensure that these survivors will have their voices
heard in a court of law if they choose to do so.
No survivor of sexual harassment or sexual assault should be forced
into silence, especially by a piece of paper buried within their
employment agreement.
Forced arbitration allows companies to hide and shield sexual
predators and keep employees from knowing that their other colleagues
could be victims of the same person.
Voiding these clauses in sexual harassment and discrimination cases
would aid victims by pulling back the veil of secrecy on bad behavior
in the workplace.
More than 56% of Americans are subject to these mandatory arbitration
agreements.
These victims deserve the right to choose to go to court, it should
not be in the hands of their employer.
A 2011 Cornell University study found that employees are less likely
to win arbitration cases.
These corporations embrace arbitration because it is a cheaper and
faster way to settle disputes and can cut down frivolous lawsuits.
Corporations do not want to face juries because they know citizens
will punish them for their wrongdoing, so they sneak arbitration
language into their take-it-or-leave-it contracts.
Forced arbitration is a sexual harasser's best friend, it is an issue
of fundamental human rights.
Eliza Dushku, an actress, testified that she had been fired from the
CBS prime-time drama ``Bull'' after she asked her co-star, Michael
Weatherly, a producer on the show, to stop harassing her.
She said he had made rape jokes about her and had told her in front
of dozens of cast and crew members that he wanted to be in a threesome
with her.
She said she had later learned that the contract she signed with CBS
included a forced arbitration clause.
After a mediation, the company agreed to a confidential settlement
that would pay Ms. Dushku $9.5 million.
Situations such as Ms. Dushku's aim to sweep sexual harassment and
assault cases under the rug.
Silencing these victims is exactly what forced arbitration agreements
are meant to do and I believe we should no longer tolerate this
behavior.
This is an excellent and common-sense bill that will ensure victims
are not silenced by forced arbitration agreements any longer.
Although we cannot bring justice and a voice for those who have
already settled their cases to their arbitration agreements, we can
ensure that future victims will be heard and not suppressed in their
truth.
{time} 1730
Mrs. FISCHBACH. Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 2 minutes to the gentleman from
Rhode Island (Mr. Cicilline), a distinguished member of the Committee
on the Judiciary.
Mr. CICILLINE. Madam Speaker, I thank the gentleman for yielding.
Madam Speaker, I heard some of my friends on the other side of the
aisle say no one wants this legislation. Nothing could be further from
the truth. The survivors of sexual assault and harassment want this,
and we should listen to them.
H.R. 4445 would restore access to justice for victims of sexual
assault or harassment who are currently locked out of the court system
due to forced arbitration clauses. These clauses are everywhere. They
block survivors from making their stories known, having their day in
court, and prevents them from holding their abusers accountable.
Some of the stories we heard during this hearing were horrific of the
kind
[[Page H989]]
of abuse and assault and demeaning behavior, and those predators knew
that they were protected from being held accountable because there were
forced arbitration clauses often accompanied with provisions that kept
those proceedings private.
So this private system forces survivors into a process, this forced
arbitration, that is not like a court system. There is no discovery.
There is no judge or jury. There are no requirements that they follow
laws passed by the Congress or the State. And when you, as I said,
combine that with nondisclosure agreements, it silences the survivors
of sexual harassment and assault. Plain and simple. This bill will end
it.
Predators rely on that silence. As long as their actions are hidden,
they are free to act with impunity, and we heard evidence that is in
fact what they do, over and over and over again. This bill will end
that.
Madam Speaker, I thank the sponsor of this legislation, Congresswoman
Cheri Bustos, who has made this her life's work since she got to
Congress. This bill will help millions of survivors who have had the
conduct that they have complained about unaddressed and unanswered and
kept quiet, and it will end that practice.
We heard testimony about the founder of Invisalign and the CEO of
Afiniti, who actually started an arbitration, invoked the clause,
because he knew that would keep the proceedings secret and his abuse
would go unaccounted for. This is disgraceful.
Madam Speaker, this should be a unanimous vote. Everyone should want
to put an end to this practice. I urge you to vote ``yes'' on H.R.
4445.
Mrs. FISCHBACH. Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the gentlewoman
from Pennsylvania (Ms. Scanlon), another distinguished member of the
Committee on the Judiciary.
Ms. SCANLON. Madam Speaker, I thank the chairman for yielding.
Madam Speaker, sexual harassment and violence in the workplace are a
corrosive and pervasive threat to the success and dignity of all
workers, but particularly women. And forced or mandatory arbitration
clauses in employment contracts have played an important role in
thwarting efforts to hold accountable the predators who engage in such
conduct and the companies that allow it to continue.
The widespread use of these clauses in employment contracts forces
many Americans to agree to a form of dispute resolution that silences
victims of sexual harassment and assault and allows the harassers and
employers to escape accountability. These arbitration proceedings
overwhelmingly benefit the employer, which drafts the nonnegotiable
clauses dictating the venue, the terms of mediation, even the
arbitrators themselves, as well as creating a perverse incentive for
the allegedly neutral arbiters to rule in favor of employers, lest they
not be hired again.
In addition to denying survivors a public forum to expose sexual
abuse, which can deter future misconduct, these arbitration clauses
also preclude class actions, which is often the only way that employees
can afford to bring successful claims.
H.R. 4445 would ban the use of forced arbitration in employment
contracts in cases of sexual assault and harassment. In addition to
protecting survivors of such harassment, that is just good public
policy.
Mrs. FISCHBACH. Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the gentleman
from Maryland (Mr. Raskin), another distinguished member of the
Committee on the Judiciary.
Mr. RASKIN. Madam Speaker, I thank the chairman for yielding. I
salute our colleague, Congresswoman Bustos, for introducing what will
certainly be the most important piece of pro-labor legislation to pass
out of the 117th Congress. Our Constitution guarantees our people the
right to a jury trial, but forced arbitration in the workplace brutally
cheats victims of sexual harassment and assault in the workplace out of
their right to a trial before a jury of their peers. And by stripping
women of this right, forced arbitration is creating corporate cultures
of pervasive and severe sexual harassment all across the country, like
the one Eliza Dushku faced in Hollywood where she got fired for
objecting to constant sexually degrading and humiliating treatment in
the workplace.
We heard testimony from women sexually harassed and raped by repeat
offenders who have been made proud and contemptuous because their
conduct is consistently buried and hidden in regimes of coerced,
closed-door arbitration. We have created monsters out of repeat-
offender sexual harassers across the country.
Let's throw the doors open and let's let the sun shine in. Let's
restore the full constitutional rights of women in the workplace. Let's
pass this legislation.
Mrs. FISCHBACH. Madam Speaker, I yield 3 minutes to the gentleman
from Colorado (Mr. Buck).
Mr. BUCK. Madam Speaker, I thank the gentlewoman from Minnesota for
yielding.
Madam Speaker, I rise in support of H.R. 4445. This is the way the
legislative process should work. This started with a victim of sexual
harassment, Gretchen Carlson, who stepped forward and brought a cancer
within an organization to light, and did it in a courageous manner.
Then my colleague, Congresswoman Cheri Bustos, took on this cause and
wrote a good piece of legislation.
But what she did was even more important. She was open to suggestions
and often adopted suggestions to make this the very best legislation
that it could be. And my friends, Congressman Matt Gaetz and Morgan
Griffith, worked alongside her and worked on our side of the aisle to
make folks aware of the need for this legislation.
Madam Speaker, I urge my colleagues to support H.R. 4445 because,
one, it empowers rape victims to make a choice between arbitration and
going to court. It also makes sure that sexual predators are held
accountable. And finally, it puts corporations on notice that if they
don't clean up their act, they are going to have a big problem. There
is no more sweeping an issue like this under the carpet. This is
something that corporations are going to take seriously, and they are
going to change their conduct as a result of a possible change to their
bottom line.
This bill gives Members a choice to support rape victims or rapists.
I choose to support the rape victims, the survivors of a terrible
ordeal, and I urge my colleagues to do the same.
Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the gentlewoman
from Texas (Ms. Garcia), another distinguished member of the Committee
on the Judiciary.
Ms. GARCIA of Texas. Madam Speaker, I thank Chairman Nadler for
yielding, and I thank the sponsor of this bill, Cheri Bustos, for her
hard work.
Madam Speaker, I rise today to express my strong support for this
bill, H.R. 4445. As a former judge, I have a very deeply held belief
that everybody should have their day in court. It is a simple
principle: Everybody should have their day in court. That is the
essence of ``justice for all'' in our country. Every time we say the
pledge and we end with ``justice for all,'' we have to demonstrate that
we mean it.
Survivors of sexual harassment and discrimination in the workplace
deserve to have their voices heard. By ending forced arbitration in
lawsuits involving sexual assault or sexual harassment claims, we
ensure survivors are given a real choice of whether to go to court or
to arbitrate their claim. Abusers will no longer be able to misuse
arbitration law with dubious agreements and fine-print clauses to hide
their violence and silence their victims.
I am proud that we are taking firm, bipartisan action to ensure
justice for sexual harassment and sexual assault victims. I am proud
that we are making sure that when little kids across America say
``justice for all,'' that it truly means for ``all.''
Madam Speaker, I urge my colleagues to vote ``yes'' on H.R. 4445.
Mrs. FISCHBACH. Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the gentlewoman
from North Carolina (Ms. Ross), another distinguished member of the
Committee on the Judiciary.
Ms. ROSS. Madam Speaker, I thank the chairman for yielding, and
especially thank our colleague, Cheri
[[Page H990]]
Bustos, for bringing this important legislation to us.
Madam Speaker, I rise today in support of H.R. 4445, the Ending
Forced Arbitration of Sexual Assault and Sexual Harassment Act.
In 2017, our country experienced a dramatic and needed shift. Women
in a variety of industries responded to news of allegations against
powerful men with the hashtag #MeToo, banding together in solidarity to
expose predatory behavior that has been overlooked and excused for
generations. But some women are still not able to speak out against
their abusers because forced arbitration agreements prevent them from
doing so.
Last year, the House Committee on the Judiciary heard testimony from
women from a variety of backgrounds and political parties, who have
suffered the dual injustices of sexual abuse and forced silence through
arbitration. Their stories illuminate how forced arbitration agreements
are too often used to protect assailants and their companies at the
expense of working women. It is past time for Congress to enable these
women to reclaim their voices and take control over their own lives.
Madam Speaker, I urge my colleagues to support H.R. 4445.
Mrs. FISCHBACH. Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the
distinguished gentlewoman from Connecticut (Ms. DeLauro).
Ms. DeLAURO. Madam Speaker, the Ending Forced Arbitration of Sexual
Assault and Sexual Harassment Act is bipartisan. It is legislation that
provides survivors with the resources they need to seek the justice
that they deserve and empower them by giving them a choice to go to
court instead of being forced into arbitration.
Survivors like Susan Fowler who, in 2015, was working with Uber when
her manager started sexually harassing her. She immediately reported
this to human resources, but when she did, her manager threatened to
fire her. And since Uber employees are forced to sign arbitration
agreements when they are hired, preventing them from bringing sexual
harassment claims to court, Susan was forced into a confidential
dispute forum without the right to appeal.
Three years later, Susan had had enough and she spoke out, writing in
an op-ed for the New York Times: ``From the systemic culture of
harassment and discrimination at Uber . . . to the ubiquitous stories
of women taken advantage of in industries ranging from professional
football to restaurants, we have seen one company after another
publicly outed and shamed for illegal treatment of employees.''
And Susan rightly asks, ``The question is no longer whether
mistreatment actually occurs . . . but what can we do to ensure that it
never happens again.''
The answer is simple. We can pass this bipartisan legislation, end
the practice of forced arbitration, and I urge my colleagues to vote in
favor of this bill.
{time} 1745
Mrs. FISCHBACH. Madam Speaker, I yield 4 minutes to the gentleman
from Ohio.
Mr. JORDAN. Madam Speaker, I want to thank the gentlewoman from
Minnesota for her great work here in the Congress and for yielding
time.
Madam Speaker, I rise in opposition to this legislation. We all know
that sexual assault and harassment are as wrong as wrong can be.
Victims of sexual harassment and sexual assault must have their claims
heard. They must never be silenced or intimidated into silence. But the
outrage we rightly feel on behalf of these victims does not mean we
should rush to pass a bill that could leave many of them worse off.
In the Judiciary Committee, we heard from experts about why this
bill's approach is misguided. For example, some of the bill's
supporters repeatedly claim that arbitration is what keeps victims from
publicizing their experiences or going to authorities and law
enforcement. But arbitration is not automatically secret or otherwise
confidential.
Agreeing to resolve a case outside of court is different from
agreeing to silence. Arbitration does not prevent anyone from speaking
out. Anyone who has agreed to arbitrate may still go to authorities and
law enforcement to report the wrongdoing, and well they should.
There is an important distinction between agreeing to arbitrate and
agreeing to silence. This distinction matters because much of the push
for this legislation comes from concerns about secrecy rather than from
an honest assessment of whether arbitration advances justice. Yet
despite the focus on secrecy, the text of this bill never actually
addresses confidentiality or nondisclosure agreements.
Another key talking point for supporters of this legislation is that
it gives plaintiffs more choice over how to resolve disputes, but that
is not how arbitration works.
Giving one party the unilateral ability to cancel a two-way agreement
to arbitrate will functionally take the option to arbitrate completely
off the table. For one thing, contracts will be far less likely to
include an option to arbitrate in the first place now. For another, we
know that if parties can't agree in advance to arbitrate, then they are
unlikely to agree to arbitrate after there has been a dispute. As a
result, the plaintiff may never get to arbitration.
More often than not, victims do not have deep pockets or the
potential for large-sum litigation settlements like those that are
available to high-profile figures. This bill will cause these women to
lose the potential benefits of arbitration.
Lawsuits are normally long and costly, and companies often have
enough money to vigorously defend these claims. These lawsuits are an
ordeal for victims who, in a normal case, must undergo discovery, give
depositions, and may even need to give public testimony. The rules of
litigation may make it much harder for victims to tell their stories in
their own words and get the relief they deserve.
Arbitration can be a welcomed alternative to the rigors and trauma of
litigation, but Democrats want to pretend that this bill won't limit
access to arbitration for victims of assault.
In reality, the bill is more about empowering the trial bar than
actual victims. As drafted, the text gives trial lawyers every
incentive to craft complaints and allege sexual harassment or assault
to get whole cases out of arbitration and into court.
Ultimately, this bill will empower the plaintiffs' bar in ways that
some of its supporters may not intend but that Democrats and trial
lawyers certainly do.
For years, Democrats have pursued plaintiffs' lawyers' wish to gut
arbitration agreements for all kinds of different claims. If Democrats
and the trial bar had their way, everyone from consumers of financial
services, to civil rights plaintiffs, to those with antitrust claims
and others would be forced into court even if they would rather agree
to arbitrate at the outset.
Don't be fooled. What is best for plaintiffs' lawyers is not always
what is best for plaintiffs.
Let's ensure whatever legislative vehicle we use actually makes
things better. I am very concerned about this legislation and how it
will actually play out for victims in practice and for the adverse
consequences it could have.
Madam Speaker, for those reasons, I would urge that we oppose the
bill.
Mr. NADLER. Madam Speaker, I reserve the balance of my time.
Mrs. FISCHBACH. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, we must consider the unintended consequences of H.R.
4445. This bill has good intentions. We all want to help victims of
sexual harassment, but this bill is not going to accomplish that. There
are many policy concerns in this piece of legislation.
I want to say again: What we have before us today is that Congress is
changing existing and agreed-to contracts. I have real concerns about
government retroactively nullifying existing contractual agreements.
If H.R. 4445 becomes law, contracts will be far less likely to
include any option to arbitrate. This is a concern for victims who do
not have the resources to pursue high-dollar settlements. We must also
keep in mind that sometimes arbitration is the best way to solve
disputes.
[[Page H991]]
Arbitration does not void an individual's constitutional rights under
the Seventh Amendment. This is just one of the many, many aspects of
this bill that needs to be reconsidered before we can confidently move
forward.
Madam Speaker, I oppose this bill, and I encourage my colleagues to
do the same until we address the concerns surrounding this bill.
Madam Speaker, I yield back the balance of my time.
Mr. NADLER. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, H.R. 4445, the Ending Forced Arbitration of Sexual
Assault and Sexual Harassment Act, removes barriers to justice for
survivors of sexual assault or sexual harassment by giving them a real
choice of whether to go to court or to arbitrate their claim after the
dispute has arisen.
Mr. Jordan is right. Many such victims, if given the choice, will
choose to go to court. Why shouldn't they? In arbitration, they lose 98
percent of the cases. The employer wins 98 percent of the cases in
arbitration. Why? Well, for one thing, the employer picks the
arbitrator, and the arbitrator is paid. So, naturally, the arbitrator
wants to rule in such a way that he or she is likely to get hired
again.
But 98 percent of the cases brought by women who have been sexually
harassed who are in forced arbitration are lost by them. That is why
this bill is necessary.
If we want to give women who have been sexually harassed a fair
chance at justice, we must pass this bill. If we want to give women who
have been sexually harassed a fair chance at winning against their
employer who did the sexual harassment or allowed the sexual
harassment, we must pass this bill.
That is why this critical measure is supported by a broad coalition
of public interest organizations, including the National Alliance to
End Sexual Violence, the National Center on Domestic and Sexual
Violence, the National Coalition Against Domestic Violence, the
National Partnership for Women and Families, RAINN, and many others.
Not one single group that deals with sexual violence opposes this
bill. Only employer organizations oppose this bill because it stacks
the deck in their favor.
Madam Speaker, I want to thank my colleagues, Representatives Bustos,
Griffith, Jayapal, and Buck, for their leadership on this issue, and I
urge my colleagues to support this bipartisan legislation.
Madam Speaker, I yield back the balance of my time.
Mr. SCOTT of Virginia. Madam Speaker, I will vote ``yes'' on H.R.
4445, Ending Forced Arbitration of Sexual Assault and Sexual Harassment
Act of 2021. However, l have reservations that certain provisions in
the bill lack clarity regarding key issues.
Employers have increasingly relied on forced arbitration clauses to
circumvent workers' right to due process. Currently, over 60 million
American workers are locked out of the courtroom due to these coercive
arrangements that compel them to go through a process that is rigged
against them. Forced arbitration undermines workers' recourse for a
wide array of employment law violations--not just sexual harassment and
sexual assault; this includes wage theft and other employment
discrimination issues. With Chairman Nadler, I introduced the Restoring
Justice for Workers Act, H.R. 4841, a more comprehensive approach to
protect workers' access to the courts and their right to collective
action no matter their workplace claim.
Although H.R. 4445 is an important step forward by ensuring that
certain individuals who experience ``sexual assault'' and ``sexual
harassment'' are not forced to arbitrate their cases based on a pre-
dispute arbitration agreement, I have concerns that the legislation
does not go far enough to offer such protections to other vulnerable
individuals who need fair access to the courts to vindicate their
rights. In the employment context, for example, the bill's singular
focus on sexual harassment involving unwelcome sexual advances,
propositions, and sexual attention, fails to account for the other,
harmful, and common, forms of sex-based harassment that occurs in the
workplace. This kind of harassment is not sexual in nature but is
motivated by a sex-based animus or hostility. It can involve offensive
and derogatory comments about women working in male-dominated
industries, physically intimidating conduct directed at men who fail to
conform to stereotypical gender norms, as well as posting demeaning and
graphic texts and images to make women or men feel uncomfortable in the
workplace. These are just a few examples of the non-sexual, sex-based
harassment that have been recognized by the Supreme Court and the U.S.
Equal Employment Opportunity Commission (EEOC), the federal agency that
enforces employment civil rights laws. Thus, given the breadth and
complexity of sex-based harassment, and the negative impact it can have
on individuals who experience it, I have concerns about limiting this
bill to a certain type of sexual harassment.
I have similar concerns about the narrow scope of individuals who are
included under the bill's definition of ``sexual harassment dispute.''
The bill states that ``the term `sexual harassment dispute' means a
dispute relating to . . . conduct directed at an individual or group of
individuals.'' The phrase ``directed at'' suggests that the individual
or group of individuals must be the target of the harassing conduct to
be included in the bill's jurisdiction. In the employment context,
however, the EEOC and federal courts have recognized that a harassment
victim does not have to be the target of the harassment to have a
viable harassment case. A salient example of this scenario is a female
employee who works in an environment where male co-workers frequently
use gender-derogatory language to describe or insult women, even though
the language is not ``directed at'' the female employee. In such a
scenario, the female employee could assert that she experienced sexual
harassment because even though she was not the direct target of her
male co-workers' gender-derogatory language, she worked in a sexually
offensive and hostile environment. Therefore, using language in H.R.
4445 that seems to narrow the scope of harassment victims to only those
who are the direct target of harassing conduct undercuts this important
principle.
I am encouraged that a group of bipartisan Members have introduced an
amendment that recognizes some of the limitations of H.R. 4445's
definition of ``sexual harassment dispute.'' This amendment
``[c]larifies that, for the purposes of the bill, sexual harassment
dispute is defined as a dispute relating to conduct that allegedly
constitutes sexual harassment under applicable Federal, Tribal, or
State sexual harassment laws.'' By embracing sexual harassment
jurisprudence, which encompasses a broader array of harassing conduct
than is currently included in the text of the bill, the amendment would
allow more sexual harassment victims to avoid forced arbitration of
their cases based on a pre-dispute arbitration agreement.
Unfortunately, this bipartisan amendment does not address one of the
most problematic issues with H.R. 4445--the lack of clarity regarding
the coverage of intersectional and related issues that arise in sexual
harassment cases. For example, in the workplace, minority women
frequently experience sexual harassment concurrent with harassment
based on their race or national origin. Additionally, a harassment
victim may experience other negative employment actions related to the
sexual harassment such as a demotion, unfavorable job transfer,
reduction in pay, or other retaliatory conduct. The language in H.R.
4445 fails to specifically state whether there is coverage of these
cases, i.e., whether intersectional cases and negative employment
action cases related to the sexual harassment would go to court as one
case or whether these cases would have to be bifurcated such that the
sexual harassment case would go to court, but the intersectional and
related case would be forced into arbitration. Given that bifurcation
of these cases will only lead to unnecessary expense and an
administrative burden for both parties, the best reading of the
language in the bill that refers to ``a case . . . [that] relates to a
sexual harassment dispute'' is that it was meant to encompass these
scenarios. Any other reading of the text regarding these issues would
lead to an impractical result, but regrettably the bill, as drafted,
does not foreclose that possibility.
The final issue I want to address is the legislation's failure to
include a notice requirement directing entities, such as employers, to
inform the recipients of their pre-dispute agreements that they have
certain protections related to forced arbitration. Typically, employers
include language about an arbitration agreement in employment
applications, contracts, and/or handbooks that is inconspicuous and
difficult for a lay person to understand. For workers to know their
rights, employers should be required to provide written, conspicuous
notice of the protections in this bill, drafted in plain language the
workers can understand, wherever the employer mentions a pre-dispute
agreement to arbitrate, and prior to the employer's commencement of
arbitration proceedings. Had these simple notice requirements been
included in this legislation, it would have helped to ensure that
``sexual assault'' and ``sexual harassment'' victims received the full
measure of protections under this bill.
Ms. JACKSON LEE. Madam Speaker, as a senior member of the House and
the Committee on Homeland Security, and as Chair of
[[Page H992]]
the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security,
I rise in strong support of H.R. 4445, the Ending Forced Arbitration of
Sexual Assault and Sexual Harassment Act of 2021.
Madam Speaker, H.R. 4445, the Ending Forced Arbitration of Sexual
Assault and Sexual Harassment Act of 2021, is bipartisan and bicameral
legislation that empowers survivors of sexual assault and sexual
harassment by giving them a choice to go to court instead of being
forced into arbitration.
This legislation would amend the Federal Arbitration Act for disputes
involving sexual assault and sexual harassment in order to stop
employers and businesses from forcing employees and customers out of
the court system and into arbitration.
It would ensure that predispute arbitration clauses and waivers of
the right to bring joint actions in cases of sexual assault or sexual
harassment would not be valid or enforceable for cases that are filed
under Federal, Tribal, or State law.
Under current law, many employment and other contracts require
binding arbitration for a wide range of matters before a dispute
arises, which denies survivors the ability to decide whether to pursue
their claim with the procedural protections provided by courts, and
silences victims of abuse by forcing them into a confidential dispute
forum without the right to appeal.
Madam Speaker, more than 60 million Americans are subject to
mandatory arbitration clauses in the workplace, often without realizing
it until they come forward to bring a claim against their employer.
The Report of the Co-Chairs of the U.S. Equal Employment Opportunity
Commission's Select Task Force on the Study of Harassment in the
Workplace notes that between 50-75 percent of women have faced some
form of unwanted or unwelcome sexual harassment in the workplace.
Additionally, contracts for services may include mandatory
arbitration clauses in the fine print that shield companies and
businesses from being held publicly accountable for the harm caused.
I support this necessary legislation because it advances efforts to
prevent and address sexual harassment and sexual assault, strengthen
rights, protect victims, and promote access to justice.
Madam Speaker, I strongly support this legislation and urge all
Members to join me in voting for H.R. 4445, the Ending Forced
Arbitration of Sexual Assault and Sexual Harassment Act of 2021.
The SPEAKER pro tempore. All time for debate on the bill has expired.
Amendment No. 1 Offered by Mr. Buck
The SPEAKER pro tempore. It is now in order to consider amendment No.
1 printed in part B of House Report 117-241.
Mr. BUCK. Madam Speaker, I have an amendment at the desk.
The SPEAKER pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:
Beginning on page 2, strike line 21 and all that follows
through line 10 on page 3, and insert the following:
(4) Sexual harassment dispute.--The term ``sexual
harassment dispute'' means a dispute relating to conduct that
is alleged to constitute sexual harassment under applicable
Federal, Tribal, or State law.
The SPEAKER pro tempore. Pursuant to House Resolution 900, the
gentleman from Colorado (Mr. Buck) and a Member opposed each will
control 5 minutes.
The Chair recognizes the gentleman from Colorado.
Mr. BUCK. Madam Speaker, this amendment is really very simple. It
changes a somewhat convoluted definition of sexual harassment to the
following: ``The term `sexual harassment dispute' means a dispute
relating to conduct that is alleged to constitute sexual harassment
under applicable Federal, Tribal, or State law.''
Simple, straightforward, understandable. The issue arose here because
there was a question of whether the definition that was contained in
this law would supersede Federal, State, or Tribal law; it doesn't.
However, this clarifies that, and I would ask my colleagues to support
this.
Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I claim the time in opposition to the
amendment, although I am not opposed.
The SPEAKER pro tempore. Without objection, the gentleman from New
York is recognized for 5 minutes.
There was no objection.
Mr. NADLER. Madam Speaker, I yield myself 45 seconds.
Madam Speaker, I rise in support of the amendment offered by the
distinguished gentleman from Colorado (Mr. Buck), the ranking member of
the Subcommittee on Antitrust, Commercial, and Administrative Law.
This amendment simply clarifies that H.R. 4445 does not amend current
law outside of the Federal Arbitration Act. It reflects the bipartisan
input of several of my colleagues in the House and Senate, including
the bill's sponsor, Congresswoman Bustos.
Importantly, this amendment would protect the rights of survivors of
sexual harassment by ensuring that they have a choice of litigating or
arbitrating any case relating to the conduct that is alleged to
constitute sexual harassment under applicable law. It does so by making
clear that anything related to sexual harassment or assault as
currently defined by law is covered by this bill.
This would include retaliation or any other misconduct that gives
rise to the underlying claim alleging a violation of these laws and
reflects an important compromise struck to protect these cases.
Madam Speaker, I urge my colleagues to support this amendment, and I
reserve the balance of my time.
Mr. BUCK. Madam Speaker, I yield 1 minute to the gentleman from North
Carolina (Mr. Bishop).
Mr. BISHOP of North Carolina. Madam Speaker, I am pleased with this
amendment by the gentleman from Colorado. It has my full support in the
Judiciary Committee.
I also appreciate the chairman's non-opposition to the amendment. I
believe it makes the bill better, and it makes the bill one that I am
going to be eager and pleased to support.
The problem before was that the bill possibly made unenforceable
arbitration agreements going well beyond sexual harassment disputes.
But for sexual harassment disputes, I am in full agreement that the
victim in every case should have the opportunity not to arbitrate,
notwithstanding an arbitration agreement.
Therefore, this amendment succeeds. I am going to be glad to support
the bill in full, and I am sure many others will as well.
Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the gentlewoman
from Illinois (Mrs. Bustos), the sponsor of the bill.
Mrs. BUSTOS. Madam Speaker, I am a proud co-lead of the amendment
with Ranking Member Ken Buck of Colorado.
This amendment is the result of good faith negotiations on an issue
raised by Republicans on the House Judiciary Committee during debate on
my bill, the Ending Forced Arbitration of Sexual Assault and Sexual
Harassment Act.
We promised them that we would work to address those issues, and we
did. I am glad we could reach an agreement to address their concerns
about State and local laws.
This amendment and the underlying bill are a testament to what we can
accomplish when we listen to each other and trust that we are working
toward a common goal. In this case, that goal is protecting survivors
of sexual assault and harassment and giving them a choice on how to
pursue justice.
Madam Speaker, I thank Congressman Buck for offering this amendment
and working with us to address the concerns of his colleagues. I urge
my colleagues on both sides of the aisle to support this amendment.
Mr. BUCK. Madam Speaker, I yield 1 minute to the distinguished
gentleman from Virginia (Mr. Griffith), a cosponsor of this bill.
Mr. GRIFFITH. Madam Speaker, I rise in support of the amendment.
As we just heard, this was the majority party taking into account the
views of the minority party, which is why we have support on both sides
of the aisle for this amendment.
This amendment will bring more Members of the minority party onto the
bill. As one of the cosponsors of the bill, I think that is a good
thing.
I think this is an appropriate amendment. I think it does clarify.
I commend Mrs. Bustos and Mr. Buck for their hard work on this
amendment. I ask that everyone vote for the amendment.
{time} 1800
Mr. NADLER. Madam Speaker, I yield 1 minute to the gentleman from
California (Mr. Correa).
[[Page H993]]
Mr. CORREA. Madam Speaker, I rise in strong support of the bill and
the amendment.
Sex crimes, including sexual harassment, are some of the most brutal
and heinous crimes, causing irreparable damage to their victims. Beyond
the physical pain, the psychological trauma usually scars the victim
for life. And let us not forget that the vast majority of victims bear
this pain silently since these crimes usually go unreported.
I want to thank Mrs. Bustos for the bill and the amendments to
prohibit forced arbitration when it comes to sexual assault. But I say
to you, Madam Speaker, this is not enough. We must also address secret
settlements and nondisclosure agreements. These agreements allow sexual
predators to continue to victimize other victims for a long, long time.
To remedy this loophole, I will be introducing legislation to
prohibit secret settlements when it comes to sexual crimes.
Mr. BUCK. Madam Speaker, I am prepared to close, and I reserve the
balance of my time.
Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the
distinguished gentlewoman from California (Ms. Speier).
Ms. SPEIER. Madam Speaker, I thank the chairman for the opportunity.
This is nothing short of profound; the impact it is going to have on
60 million Americans who don't even know that they have agreed to
forced arbitration and the fact that in 98 percent of the cases of
sexual assault and sexual harassment in the workplace, the employer
wins.
We had a hearing last week in which the NFL staffers at the
Washington Commanders talked about the sexual harassment and sexual
assault that they endured. One of them said in the year and a half that
she worked there, she was sexually harassed every single day.
Let me speak about Loretta Lee of California who was fired from
Google after complaining about male coworkers making lewd remarks,
sending her disturbing messages, hiding under her desk, and showing up
at her apartment. In addition to losing her right to file suit, she was
also forced to meet with her perpetrators, resulting in retaliation.
Representative Bustos has done a great service to men and women who
are sexually harassed and sexually assaulted in the workplace. I
commend her, and I applaud her.
Madam Speaker, I urge all my colleagues to vote for this amendment
and for the legislation.
Mr. BUCK. Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, in closing, I thank Mr. Buck for offering
this helpful amendment.
I thank Ms. Speier, and I thank all the people who have been so
helpful on this bill.
Madam Speaker, I yield back the balance of my time.
Mr. BUCK. Madam Speaker, I thank the gentleman for his leadership,
and I appreciate Mrs. Bustos and her willingness to consider this
language. I don't know that there was a problem beforehand, but
whatever there was, it has been cleared up, and I very much think that
this is a stronger bill as a result of this amendment.
Madam Speaker, I urge my colleagues to vote for it, and I yield back
the balance of my time.
The SPEAKER pro tempore. Pursuant to the rule, the previous question
is ordered on the bill and on the amendment offered by the gentleman
from Colorado (Mr. Buck).
The question is on the amendment offered by the gentleman from
Colorado (Mr. Buck).
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. JORDAN. Madam Speaker, on that I demand the yeas and nays.
The SPEAKER pro tempore. Pursuant to section 3(s) of House Resolution
8, the yeas and nays are ordered.
Pursuant to clause 8 of rule XX, further proceedings on this question
are postponed.
Pursuant to clause 1(c) of rule XIX, further consideration of H.R.
4445 is postponed.
____________________