WASHINGTON — A bill written by Sen. Kirsten E. Gillibrand to end the practice of forcing people who accuse others of sexual harassment or sexual abuse into arbitration is moving to President Joe Biden’s desk.
Senators on Thursday voted to adopt the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which the House passed 335-97 Monday. Any agreements that prevent someone from filing a lawsuit in open court in cases of alleged sexual assault or harassment will be invalidated once enacted.
Gillibrand originally composed and introduced the measure in the Senate in 2017. In an exclusive interview, she said the bill’s foundation lies in the -MeToo movement, through which women across a number of professions and industries have publicly discussed the toxic, harassment-filled culture many experience in the workplace.
“This is the middle of the national debate around -MeToo, we saw the outrageous cases of what was happening at Fox News and other major employers,” Gillibrand said.
Former Fox News anchor Gretchen E. Carlson in 2016 filed a lawsuit against Fox News Chairman and CEO Roger E. Ailes, who she alleged initiated her firing after she refused his sexual advances. Ailes resigned that year and the suit was settled with Carlson after the company attempted to force arbitration based on Carlson’s contract.
“Meeting with Gretchen Carlson directly was something that was very important,” Gillibrand added.
Several other women came forward alleging Ailes sexually harassed them throughout his career. Ailes died in 2017.
Gillibrand said the meeting with Carlson was especially meaningful for Sen. Lindsey O. Graham, R-S.C — the lead Republican supporting the bill with her.
“That really changed his perspective and amplified how urgent this was,” she said.
Lawmakers established a bipartisan, bicameral group of support for the measure. In the House, 18 Democrats and eight Republicans directly co-sponsored the bill and all but 97 members — all Republicans — voted to pass the bill Monday. Reps. Antonio Delgado, D-Rhinebeck; Elise M. Stefanik, R-Schuylerville; and Chris L. Jacobs, R-Orchard Park; voted in favor with the entirety of New York’s congressional delegation.
Senators’ individual votes were not recorded in the chamber’s voice tally Thursday. Senate Majority Leader Charles E. Schumer, D-N.Y., spoke in support of the measure on the Senate floor earlier this week.
“Congress can finally act to empower victims of sexual assault and sexual harassment to speak openly by nullifying forced arbitration clauses that push survivors into an often secret and biased process,” he said Monday.
Gillibrand said the measure will go a long way to address sexual harassment in the workplace — returning the constitutional right to a trial to millions of American workers.
“No longer will predators be able to hide behind non-disclosure agreements and companies unwilling to hold them accountable, because these arbitration clauses and non-disclosure clauses have kept harassment and other bad behavior in the shadow,” she said.
The U.S. Equal Employment Opportunity Commission, which administers and enforces civil rights laws in workplaces, received more than 21,000 charges of sex-based discrimination in 2020, with 11,497 of those being charges of sexual harassment, the senator said.
Officials do not have a method to know the number of claims forced into private arbitration annually because of non-disclosure agreements typically included in the initial agreement, or the arbitration process, Gillibrand said.
“We know that the average settlement for a sexual harassment case in arbitration is $30,000, whereas the average court case is $217,000,” she said.
Biden’s administration has issued official guidance supporting the bill as introduced in the House by U.S. Rep. Cheryl “Cheri” L. Bustos, D-Ill. — the same bill that passed the Senate on Thursday.
Once the president signs the bill into law, any contract with the provision that parties pursue arbitration rather than court proceedings to resolve allegations of sexual harassment or assault will have that provision invalidated. New contracts drawn up would not be able to contain such requirements.
“This will affect millions of workers instantly,” Sen. Gillibrand said.
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