[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.

                          ____________________