US Bill to bar Forced Arbitration in Sexual Assault Cases

February 12, 2022

On February 10, 2022, the US Congress passed a legislation ending forced arbitration in sexual assault and harassment disputes at workplaces.

Provisions of the Bill

The Bill seeks to allow survivors to sue their abusers in public court, even if they have signed employment agreements which require them to settle disputes through an arbitrator, internally.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment bill will have retroactive effect.
Bill nulls predispute arbitration agreement as well as predispute joint-action waiver.
As per the bill, any agreement for arbitrating a dispute that had not yet arisen at the time of making of agreement” is called as predispute arbitration agreement.
On the other hand, predispute joint-action waiver as an agreement prohibiting or waiving the right of employee to “take part in a joint, class, or collective action in a arbitral, administrative, judicial, or other forum, concerning a dispute”.

Background

This bill was introduced in 2017 in Congress by Senator Kirsten Gillibrand, in the backdrop of #MeToo case at Fox News.

What is forced arbitration?

Employee contracts often comprises of arbitration provisions to limit what they are allowed to say in public about workplace disputes like sexual harassment or racial discrimination disputes. It allows companies to settle disputes through an arbitrator, which is an independent body comprising of lawyers or retired judges, internally. It restricts employees to pursue legal action publicly.

How #MeToo case highlighted forced arbitration?

Sexual allegations by former Fox News anchor Gretchen Carlson at her workplace led to the downfall of Roger Ailes, who was the CEO of Fox News. The CEO was considered as a ‘kingmaker’ in the industry. Her case shed light on forced arbitration practice. Carlson recorded proof of Ailes’ sexual harassment over the year, which constituted inappropriate remarks and overtly sexual proposition. But she learnt that a mandatory arbitration clause in her contract don’t allow suing Fox News for workplace harassment. Thus, in 2016, she decided to sue Ailes personally. Her lawsuit and media’s coverage of this case prompted other women to speak up against Ailes. After much internal debate Ailes was banned from media house, while Carlson was awarded a USD 20 million settlement.

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