Why it matters

A new bill introduced in Congress would prohibit arbitration agreements in situations involving sexual harassment. The Ending Forced Arbitration of Sexual Harassment Act of 2017, sponsored by Sens. Kirsten Gillibrand (D-N.Y.) and Lindsey Graham (R-S.C.), states that “no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a sex discrimination dispute,” defined as “a dispute between an employer and employee arising out of conduct that would form the basis of a claim based on sex under Title VII.” Senate Bill 2203 would not apply to employers that are excluded from coverage by Title VII or by any arbitration provision in a collection bargaining agreement. The measure would allow victims of sexual harassment or discrimination to “seek justice, discuss their cases publicly, and eliminate institutional protection for harassers,” the legislators said in a statement.

Detailed discussion

In the wake of the tidal wave of allegations by women of sexual harassment around the country, from Hollywood to Washington, D.C., federal lawmakers have introduced a new measure that would prohibit forced arbitration agreements that require the arbitration of sexual harassment and discrimination claims.

Pursuant to the Ending Forced Arbitration of Sexual Harassment Act of 2017, “no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a sex discrimination dispute.”

“Predispute arbitration agreement” was defined to mean “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement,” while the term “sex discrimination dispute” refers to “a dispute between an employer and employee arising out of conduct that would form the basis of a claim based on sex under Title VII of the Civil Rights Act of 1964.”

The measure would apply neither to employers who are excluded from coverage by Title VII nor “to any arbitration provision in a contract between an employer and a labor organization or between labor organizations, except that no such arbitration provision shall have the effect of waiving the right of an employee to seek judicial enforcement of a right arising under a provision of the Constitution of the United States, a State constitution, or a Federal or State statute, or public policy arising therefrom.”

Senate Bill 2203 was introduced by Sens. Kirsten Gillibrand (D-N.Y.) and Lindsey Graham (R-S.C.), who noted that an estimated 60 million Americans are subject to forced arbitration clauses in their employment contracts.

“When a company has a forced arbitration policy, it means that if a worker is sexually harassed or sexually assaulted in the workplace, they are not allowed to go to court over it; instead, they have to go into a secret meeting with their employer and try to work out some kind of deal that really only protects the predator,” Sen. Gillibrand said in a statement about the measure. “They are forbidden from talking about what happened, and then they are expected to keep doing their job as if nothing happened to them. No worker should have to put up with such an unfair system.”

Sen. Graham added that he does not oppose arbitration but that “to expect change without pushing for change is unrealistic. Ensuring that sexual harassment and assault claims cannot be negotiated away before they occur will create incentives to change the workplace environment, making it less hostile and more respectful.”

After being introduced in the Senate, the bill was referred to the Committee on Health, Education, Labor, and Pensions.

To read S. 2203, click here.