[Congressional Record Volume 168, Number 27 (Thursday, February 10, 2022)]
[Senate]
[Pages S624-S628]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
H.R. 4445
Ms. ERNST. Madam President, protecting survivors of sexual assault
and
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harassment has been one of my top priorities here in the Senate. In
fact, yesterday, I introduced the bipartisan Violence Against Women Act
Reauthorization Act of 2022, which now has the support of 10 of my
Republican colleagues.
Today, we are here to talk about another issue that is impacting too
many in our Nation's workforce. The Ending Forced Arbitration of Sexual
Assault and Sexual Harassment Act of 2022 provides survivors of sexual
assault and sexual harassment with a choice between litigation and
arbitration so their voices will not be silenced.
Earlier this Congress, I was glad to see progress in the Senate
Judiciary Committee as they moved forward on this bill. The committee
took action that I supported. They removed the provision on collective
bargaining agreements. Just this week, I was even more encouraged when
the House made further changes to the bill that improved the definition
of sexual harassment.
While these changes are important and significant, it is still not a
perfect solution. That is why, when I sat down earlier this week with
the majority leader and the lead Republican sponsor of this bill, my
friend from South Carolina, we agreed to come to the floor and ensure
the congressional intent of the Ending Forced Arbitration of Sexual
Assault and Sexual Harassment Act of 2022 was crystal clear.
During our meeting, my colleagues agreed with me that this bill
should not be the catalyst for destroying predispute arbitration
agreements in all employment matters. Specifically, we agreed that
harassment or assault claims should not be joined to an employment
claim without a key nexus. Harassment and assault allegations are very
serious and should stand on their own. The language of this bill should
be narrowly interpreted. It should not be used as a mechanism to move
employment claims that are unrelated to these important issues out of
the current system. These clarifications are needed.
I care very much and support survivors of sexual harassment or
assault having access to the appropriate process to ensure swift
justice, but it is also very important to me that those claims stand
separate from any other kind of claim. I am grateful that Senators
Schumer and Graham stand with me today in knowing that those claims are
meaningfully different.
There is one other important piece here that I would like to mention
and that, I hope, my colleagues can agree with me on. If an employment
agreement contains a predispute arbitration clause and a sexual assault
or harassment claim is brought forward in conjunction with another
employment claim and the assault or harassment claim is later
dismissed, a court should remand the other claim back to the
arbitration system under this bill.
I think we can all agree that we want to ensure survivors of sexual
assault have their voices heard. We just have to do this in a thorough
and thoughtful way.
My hope is that the legislative intent of this bill reflects the
conversation with my colleagues discussed here today; namely, that the
Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act
of 2022 should not effectively destroy arbitration in employment
litigation.
This bill is narrow and scoped to address sexual assault and sexual
harassment cases. These clarifications we are making here reflect the
specific challenges that victims of these particular allegations face.
And if any subsequent litigation manipulates the text to game the
system, Senators Schumer and Graham have pledged to work with me on a
bipartisan bill to further codify the intent and language of this bill.
I would yield to Senator Graham for further discussion.
The PRESIDING OFFICER (Mr. Cardin). The Senator from South Carolina.
Mr. GRAHAM. Mr. President, I say to the Senator, I agree with
everything you said. You said it well. So what is the goal here?
Senator Gillibrand and I and many others have been working to stop
the practice of someone signing an employment contract, having a sexual
harassment or assault problem in the workplace, and being forced into
arbitration that is skewed for the employer against the employee for
these things to be hidden.
We do not intend to take unrelated claims out of the contract. What
we are preventing here is sexual assault and sexual harassment claims
being forced into arbitration, which perpetuates the problem. The light
of day in a courtroom is what we are hoping for. The plaintiff still
has to prove their case. The defendant has robust due process.
But Senator Ernst's concerns, I share. If lawyers try to game the
system, they are acting in bad faith. They could be subject to
disciplinary proceedings by courts. What we are not going to do is take
unrelated claims out of the arbitration contract. So if you have got an
hour-and-wage dispute with the employer, you make a sexual harassment,
sexual assault claim, the hour-and-wage dispute stays under arbitration
unless it is related. That is the goal.
I hope people won't game the system. I hope it will bring about the
reform we are all hoping for: to make it harder to hide these problems
in the workplace and easier to get justice without gaming the system.
Mr. DURBIN. Mr. President, this body is at its best when we come
together to support our most vulnerable neighbors. Today, and in the
coming days, we have a chance to do just that.
The Senate will be considering two pieces of legislation that will
provide vital support to survivors of domestic violence and sexual
assault: the VAWA Reauthorization Act of 2022 and the Ending Forced
Arbitration of Sexual Assault and Sexual Harassment Act.
Both of these bills are the product of months of bipartisan
negotiations. And they will ensure that survivors of domestic violence
and sexual assault can reach for a lifeline in a moment of crisis and
seek justice against their abusers.
At a time when nearly one in three women living today say they have
experienced some form of physical or sexual violence, this Senate must
be united in standing with survivors. With these two pieces of
legislation, we can prove to them and every survivor in America that
they are not alone.
Every day, domestic violence hotlines throughout the country receive
roughly 20,000 calls from victims or people who are at risk of intimate
partner violence. That number is a sobering reminder that the crisis of
sexual and domestic violence touches every community in America.
We need to ensure that every victim, whether they live in a Native
community in rural Alaska or in a city like Chicago or Las Vegas, can
reach for help the moment they need it.
Mr. President, yesterday, I joined Senator Feinstein, Senator Ernst,
Senator Murkowski--and 16 of our Democratic and Republican colleagues--
in introducing a reauthorization of the Violence Against Women Act--
also known as VAWA.
Since VAWA was first enacted nearly 30 years ago, it has transformed
the way we address domestic and sexual violence in America. And it has
helped save the lives of countless survivors.
Let me tell you about one of them. Her name is Meaghan. Years ago,
Meaghan was brutally assaulted by her ex-husband. The beating was so
violent that she is still suffering from hearing loss to this day.
While Meaghan was being attacked, her 2-and-half-year-old son, who is
on the autism spectrum, ran over to help her. As he was running, the
ex-husband picked up the child and threw him into a closet. Meaghan
says the experience was so traumatizing that her son didn't speak for a
full year after the attack.
When Meaghan finally broke free from her ex-husband, she packed her
bags, buckled her two children into the car, and fled for her life. And
today, her ex-husband is on the run with six open warrants for his
arrest. Meaghan says she and her kids are constantly looking over their
shoulders. As Meaghan and her family have begun to heal from this
horrifying ordeal, she says they have found much-needed compassion and
support in the detectives and social workers who came to their aid.
She wrote that service providers ``were patient with me and didn't
push me, [they] only showed me they cared, and most of all didn't give
up . . . with their support and guidance I found the light at the end
of the tunnel and I fought my way out of the darkness
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that my ex-husband had cast . . . on my life.''
Meaghan's story is just one example of the world of difference VAWA
has made for victims of sexual and domestic violence. In her case, VAWA
provided critical resources to law enforcement and social service
agencies that helped her and her family escape a perilous situation.
And with the bill we introduced yesterday to update and modernize
VAWA, we can build on that lifesaving legacy. To be sure, this
legislation is a compromise. It does not include every provision I
would like--nor every provision that Senators Feinstein, Ernst, or
Murkowski would like.
But it will deliver critical assistance to survivors across the
country--including funding for legal services, trauma-informed law
enforcement responses, and access to services for survivors who require
culturally specific services, like LGBTQ survivors, survivors living
with disabilities, survivors in rural areas, and members of other
underserved communities.
We have crafted a proposal that will save lives--and has a pathway to
passage in the Senate.
In fact, the broad, bipartisan coalition in support of this effort
was on full display yesterday, when we announced this legislation
alongside survivors and advocates, district attorneys, the Baltimore
police commissioner, and actor and advocate Angelina Jolie.
Let me just say: If Thena, the goddess of war, can't convince 60
Senators to support this bill, well, I certainly have my work cut out
as whip.
It has been 9 years since we last reauthorized VAWA and 4 years since
that reauthorization expired. Survivors can't wait any longer. Let's
send this law to President Biden's desk as soon as possible.
Mr. President, there is more we can do to support survivors of sexual
misconduct. These acts of abuse and harassment leave behind scars, both
visible and invisible, that can last a lifetime. Every survivor
deserves the right to seek justice on their own terms.
That is why, this morning, the Senate will vote to enact the Ending
Forced Arbitration of Sexual Assault and Sexual Harassment Act. It was
introduced in the House by my friend and Illinois colleague
Representative Cheri Bustos and was passed in that Chamber on Monday
with a resounding, bipartisan vote of 335-97.
The members of this Senate will join the House in passing this
legislation on a bipartisan basis. This bill was introduced last year
by Senators Gillibrand, Graham, and myself.
The premise of this legislation is simple: Survivors of sexual
assault or harassment deserve their day in court. They should be able
to choose whether to bring a case forward, instead of being forced into
a secret arbitration proceeding where the deck is stacked against them.
It has become increasingly clear that forced arbitration clauses have
enabled sexual abusers to escape scrutiny while their victims are
compelled to stay silent. That is wrong.
Survivors deserve accountability. And that is exactly what this law
will deliver.
Far too many survivors have been locked out of the court system
because of a forced arbitration clause buried in the fine print of a
contract they signed.
Consider the case of Lilly Silbert. She had a monthly membership to a
therapeutic massage company, ``Massage Envy.'' And one day, she was
sexually assaulted by a massage therapist.
Afterwards, Lilly tried to cancel her membership. To do so, she had
to download the company's app and agree to its terms and conditions.
But there was a detail buried deep within those terms and conditions: a
forced arbitration clause. Lilly didn't even know it was there.
So when she tried to file a lawsuit against the company, they
responded by trying to force her into a secret arbitration proceeding
rather than let her get her day in court.
Even national figures have been trapped by forced arbitration
clauses, people like Gretchen Carlson, a journalist and FOX News anchor
who has been a champion in bringing this issue to light.
You may remember that Ms. Carlson brought a sexual harassment case
against her former boss, Roger Ailes. He responded by invoking a forced
arbitration clause in her employment agreement.
Forced arbitration clauses not only deny survivors their right to a
day in court, they also conceal their allegations from public view.
That is a green light for abusers to continue harming and harassing
victims.
Hidden in fine print, these agreements silence survivors and enable
abusers. We must end this injustice.
The bill we will pass today will ensure that every survivor has the
choice to go to court. It will not change the law around what
constitutes sexual harassment or assault.
But it will give survivors a choice of whether or not to bring a
claim in court after the sexual assault or harassment claim has arisen,
notwithstanding the presence of a forced arbitration clause.
There are a few other points about the bill that I want to emphasize.
The Senator from Iowa discussed her concerns about the bill being
used to move claims that are ``unrelated'' to allegations of sexual
harassment or sexual assault.
The bill is clear on this point. Under the bill, if the survivor so
chooses, no predispute arbitration agreement 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.'' That resolves the Senator's concern.
I do want to clarify, though, that the bill text does not require any
court to adopt new dismissal mechanisms for survivors' claims. Current
State or Federal law governs how and when a case moves forward, and the
bill does not create any new mechanism to allow for dismissal, nor does
it require that victims have to prove a sexual assault or harassment
claim before the rest of their related case can proceed in court.
Furthermore, the bill should not be interpreted to require that if a
sexual assault or harassment claim is brought forward in conjunction
with another related claim and the assault or harassment claim is later
dismissed, the court must remand the other claim back to forced
arbitration. That is not what the bill requires.
There is nothing in the bill directing courts to dismiss related
claims and compel them to forced arbitration if a victim ultimately
does not prevail on her sexual assault or harassment claim.
If there were such a requirement, it would have the undesirable
effect of hiding corporate behavior such as retaliation and
discrimination against women who report assaults and harassment.
Take the real-world example of Ms. Taylor Gilbert. In 2015, at age
22, she had just started working for a company called Indeed, Inc.
While at a company training at a hotel, she was assaulted and raped by
a company manager. Fearing she would lose her job, she did not
initially report the assault to the company, but after repeated further
sexual harassment from colleagues, she filed complaints with the
company and told her supervisor what happened.
The company took no action, and Ms. Gilbert claimed she faced
retaliation for having reported her complaints, including being
bypassed for promotions and raises. Ms. Gilbert tried to bring a case
in court against the manager who raped her and against the company--not
just for the rape and harassment, but also for the retaliation that
adversely affected her career path. But there was a forced arbitration
clause in her employment contract, and her case was sent to forced
arbitration.
Under this bill, that would change. Her case and all of its claims
were related to the assault and harassment. Under this bill, the
survivor would get the choice to bring that case in court, and the bill
does not require dismissal of some claims in the case if other claims
are not ultimately proven.
In Ms. Gilbert's case, it was essential that the company's conduct in
enabling the abuse and harassment and also retaliating against her be
brought to light, not covered up by being separated and forced into
arbitration.
So to clarify, for cases which involve conduct that is related to a
sexual harassment dispute or sexual assault dispute, survivors should
be allowed to proceed with their full case in court regardless of which
claims are ultimately
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proven. I am glad that is what this bill provides.
With this bill becoming law, survivors like Lilly Silbert, Gretchen
Carlson, and Taylor Gilbert will finally have the right to make their
case in court. And it will prevent abusers--along with those who enable
them--from hiding behind a veil of secrecy.
I want to thank my colleague, Congresswoman Cheri Bustos, once again
for her leadership on this proposal in the House. And I want to thank
Senator Gillibrand for her leadership as well--and for all the work she
does to support survivors.
Senator Graham has also been a vital partner in this effort; he held
a hearing on this legislation when he served as chair of the Judiciary
Committee. And he has been a great partner in getting it across the
finish line.
Finally, I want to thank the members of our staffs who have worked
day and night on this legislation--in particular: Alexandra Lowe-Server
on Senator Gillibrand's staff, Katherine Nikas on Senator Graham's
staff, and most of all Shanna Winters on my Judiciary Committee staff,
who has worked tirelessly on this effort.
Today will be an historic day in the U.S. Senate. With the Ending
Forced Arbitration of Sexual Assault and Sexual Harassment Act, the
rights of every survivor will be protected.
The PRESIDING OFFICER. The Senator from New York.
Mrs. GILLIBRAND. Mr. President, I just want to thank my colleagues
Senator Graham and Senator Ernst for their outstanding work in this
regard.
We have worked over many years to get a bill that can be agreed upon.
Senator Ernst made sure that her concerns were met in several ways. But
I agree with both of their statements. I do not believe that survivors
of sexual assault and harassment will abuse the ability to file cases
in court.
The bill plainly reads, which is very relevant to Senator Ernst's
concerns, that only disputes that relate to sexual assault or
harassment conduct can escape the forced arbitration clauses. ``That
relate to'' is in the text. The language of the bill specifically
states that ``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,'' and ``the term
`sexual assault dispute' means a dispute involving a nonconsensual
sexual act or sexual conduct.''
To be clear, there are no new legal burdens to sexual harassment
established in the bill. This was another concern that Senator Ernst
had. It is all tied to existing Federal, State, and Tribal law.
This bill will basically give survivors the ability to go to court
where they are ``alleging conduct constituting a sexual harassment
dispute or a sexual assault dispute.'' When a sexual assault or sexual
harassment survivor files a court case in order to seek accountability,
her single case may include multiple claims. But as Senator Ernst said,
if those claims on harassment or assault are dismissed, then she would
go back to the arbitration process.
But it is--and this is important to Senator Graham and I--it is
essential that all the claims related to the sexual assault or
harassment can be adjudicated at one time for the specific purpose that
Senator Ernst is well aware of. We don't want to have to make a sexual
assault or harassment victim relive that experience in multiple
jurisdictions. So we want to be able to deal with all the harassment-
and assault-related claims in one goal. But, again, if those aren't
part of it, then this bill does not apply to it.
So you are quite right in your clarification, and that is exactly
what we intended the bill to do.
Every State and Federal court in the country requires a person to
allege certain things in a certain way in order to properly plead a
case such that it won't be immediately dismissed. Victims here must
follow the rules and plead a case correctly, and then they must also
affirm to the Court that they have a good-faith basis for doing so.
Attorneys must do the same thing.
If victims and attorneys break those rules, they can be sanctioned in
court, as Senator Graham mentioned. To ensure that a victim is able to
realize the rights and protections intended to be restored to her by
this legislation, all of the related claims will proceed together.
I yield back to my colleagues.
Can I just read my full statement now?
Mr. SCHUMER. Sure, please.
Mrs. GILLIBRAND. Do you have more to say, Senator Ernst?
Ms. ERNST. I am good.
I will yield the floor but want to thank my colleagues.
Mrs. GILLIBRAND. Mr. President, I just want to, for the record, talk
about this legislation and how important it is.
I am extremely grateful for the work of Senator Graham over the last
5 years in writing this bill. And I am very grateful to the majority
leader for meeting with Senator Ernst and Senator Graham yesterday to
make the final decisions on this bill and to close the deal.
Senator Schumer is one of the greatest listeners and has the ability
to bring legislation to fruition, and that is exactly what he did
yesterday. And I am very grateful.
This bill represents one of the most significant workplace reforms in
American history. It will help us fix a broken system that protects
perpetrators and corporations and end the days of silencing survivors.
Too often, when survivors of sexual assault or harassment in the
workplace come forward, they are told they are legally forbidden to sue
their employer because somewhere buried in their employment contract
was a forced arbitration clause, often accompanied by a nondisclosure
agreement.
Instead of being allowed their day in court, these survivors are
pushed into a system designed by the same corporation that they are
challenging. They are blocked from seeking information that could prove
their case, and they are left in the hands of an extrajudicial
arbitrator who is typically selected by their employer and is not
always a trained lawyer.
The arbitration process not only allows the corporations to hide
sexual harassment and assault cases in this secretive and often biased
process, but it shields those who have committed serious misconduct
from the public eye. Across the board, employees are less likely to win
an arbitration than they are in court. Even when they do win, they
typically receive much lower monetary awards. And because the results
of arbitration are secret and binding, there is no chance for an
appeal, and repeat offenders are often not held to account.
Estimates suggest that more than 60 million Americans are subject to
arbitration clauses. Many don't even know it because the clauses are
hidden in the fine print. Forced arbitration clauses are especially
common in female-dominated industries.
The ACLU has reported that 57.6 percent of female workers are subject
to this practice. It is also especially prevalent in low-wage fields
and industries with disproportionately high numbers of women of color.
These clauses leave those women who often cannot afford to challenge
their employers without recourse. But this affects women in every
industry.
A 2018 analysis of sexual harassment claims made on Wall Street found
that in 30 years, just 17 women--30 years, just 17 women--won their
claims before Wall Street's oversight body, and most cases were
dismissed or denied.
I want to share the stories of two survivors to illustrate how broken
the system is.
First is Lora Henry, who worked at a Kia dealership in Ohio where her
boss sexually harassed her, touching her inappropriately, making
inappropriate comments, bringing her inappropriate gifts. When she
reported him, the company did a sham investigation and forced her into
arbitration. She was only able to share her story because Congress
issued her a subpoena. She should not have needed the protection of a
congressional subpoena to speak out. She testified, ``The cycle of
harassment will continue if you force women to be quiet and allow
sexual harassers and the companies that allow them to hide behind
arbitration agreements.''
The second story is about Andowah Newton, who was working for the
vice president of legal affairs at the luxury goods company LVMH Moet
Hennessy Louis Vuitton, Inc., in New York, when she reported being
sexually harassed and assaulted by a colleague. Even
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though she filed her sexual harassment case in a New York State court,
the company moved to compel forced arbitration on the grounds that
Federal law supersedes New York State law that attempts to protect
victims of harassment from being forced into arbitration. She said:
Because of forced arbitration and [confidentiality
agreements], I may never know the extent to which [this
perpetrator] sexually assaulted or harassed others, [and] if
LVMH retaliated against others as they did me. . . . His
sexual harassment, attempted assault, and assault made me
feel scared, demeaned, and ashamed. I found myself constantly
agitated, distressed, and hypervigilant, preoccupied with
avoiding the trauma of encountering him.
Even with her legal expertise and experience as vice president of
legal affairs, she was powerless in this system. She said the company
convinced her ``that . . . harassment was just a byproduct of being an
attractive woman who works at a company with a French culture.'' That
is the same company running the arbitration process. That is why this
bill fixes the problem.
Survivors deserve a real chance at justice, and that is what this
bill does.
This bipartisan, bicameral bill would amend the Federal Arbitration
Act to void all forced arbitration provisions for sexual assault and
harassment survivors. Removing those provisions would give survivors
their day in court, allow them to discuss their case publicly, and end
the days of institutional protection of harassers.
This legislation passed with bipartisan, broad support in the House,
and I hope my colleagues will join us in supporting this critical
workplace reform in the Senate.
Again, I thank Senator Schumer and Senator Graham.
I yield the floor.
The PRESIDING OFFICER. The majority leader.
Mr. SCHUMER. Mr. President, first, let me compliment my colleague
from New York. Her persistence, her intelligence, her determination and
passion to change the law so these injustices, which occur so many
times that we don't know about, will no longer be there is so vital.
So thank you for a job well done.
Thanks to my colleague Senator Graham, the lead Republican sponsor,
who, when he gets behind something, it gets done. So I want him behind
more things with us in the future.
And to Senator Ernst, who is not here, she has been a great leader on
this as well. And when we met in my office with Senator Graham, Senator
Ernst was very amenable to getting this done.
It is an outrage, just an outrage, that women and men who are abused
cannot seek justice, are forced to be quiet, are forced to keep the
agony inside themselves. It is outrageous.
For decades, this forced arbitration has just deprived millions of
people, almost all women, from basic rights to justice. We need justice
in so many areas, but when you can't seek justice when you are
harassed, it is just one of the greatest marks of injustice, one of the
greatest times of injustice.
The good news about this legislation is all the clauses that people
already signed in their employment contracts, even when they didn't
know about it, will no longer be valid. So it not only affects the
future but affects those who signed in the past.
If you could ever say that any legislation is long overdue, this is
it. It is time for a change. And moments from now, the Senate will
finally act to make forced arbitration for sexual harassment and
assault a thing of the past.
We are now going to voice vote this wonderful, needed legislation.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. GRAHAM. I will be real quick.
Senator Schumer, thank you for making this happen. You made sure it
would come up today, we would get a voice vote.
Senator Ernst has been great.
Kirsten, it has been a hell of a ride. We talked to Microsoft about 3
or 4 years ago about this. They jumped onboard and started changing it
internally.
I have heard from the Chamber. I am open-minded about making sure we
don't hurt business. It does not hurt business to make sure that people
who are harassed in the workplace get treated fairly. It is better for
business.
I just want to say, this shows that we can function up here, that we
are listening to the world as it is. So the days of taking sexual
harassment and sexual assault claims and burying them in the basement
of arbitration are over.
Arbitration has its place between business. It can be a good thing.
But when you sign a document--multiple pages--just to get a job, you
really don't know what you are signing. We are saying, you are not
going to sign away your life in terms of having your day in court if
somebody treats you poorly. You still have got to prove your case. The
defendant has robust due process rights, which they should, but the
abuse of arbitration that perpetuates sexual harassment and sexual
assault in the workplace is soon to be done away with.
Thank you, Senator Schumer.
Thank you, Senator Gillibrand.
And to all of my colleagues on the Republican side, thank you.
This is not bad for business. This is good for America.
Vote on H.R. 4445
Mr. SCHUMER. Call the question.
The PRESIDING OFFICER. Under the previous order, the clerk will read
the title of the bill for the third time.
The bill was ordered to a third reading and was read the third time.
The PRESIDING OFFICER. The bill having been read the third time, the
question is, Shall the bill pass?
The bill (H.R. 4445) was passed.
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