Federal Bill Ends Forced Arbitration in Workplace Sexual Assault, Harassment Cases

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Passage of Federal Workplace Sexual Misconduct Bill Hailed as Major Step in #MeToo Era

Passage of Federal Workplace Sexual Misconduct Bill Hailed as Major Step in #MeToo Era

Mar 31, 2022

President Joe Biden signed into law sweeping workplace reforms earlier this month, effectively ending forced arbitration in sexual assault and harassment cases. Under the new law – known as the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act – survivors will now be able to file lawsuits in court against their perpetrators.

Federal Bill Ends Forced Arbitration in Workplace Sexual Assault, Harassment Cases

During a March 3 White House ceremony to announce the law being signed, President Biden was joined with members of Congress, Vice President Kamala Harris, four survivors who testified on Capitol Hill in support of the bill, and former Fox News host Gretchen Carlson. In 2016, Carlson sued her then-boss and company CEO, Roger Ailes, for sexual harassment. A settlement for $20 million was eventually reached between Carlson and Fox News, ultimately resulting in Ailes being terminated from the company.

CNN reported that Carlson has worked to ban arbitration clauses since suing Ailes. The legislation ends the use of forced arbitration clauses specifically for sexual harassment and sexual assault claims, allowing victims the option of bringing up the dispute in federal, tribal, or state court, according to CNN. Additionally, the new law will apply retroactively to previously resolved cases unless the cases are pending.

When it comes to sexual harassment and assault, forced arbitration shielded perpetrators, silenced survivors, enabled employers to sweep episodes of sexual assault harassment under the rug and it kept survivors from knowing if others have experienced the same thing in the same workplace, at the hands of the same person,” Biden said before signing the bill.

Between half and three-quarters of all women report that they have faced some form of sexual harassment in the workplace,” Biden added. “And too often they’re denied a voice and a fair chance to do anything about it. Today, we send a clear and strong message that we stand with you for safety, dignity and for justice.”

Biden also noted that “there will be cases where victims want their claims resolved in private, but some survivors will want their day in court and that should be their choice and nobody else’s choice.”

Vice President Harris told those gathered at the signing that the new law will make America’s workplaces more just, according to a Washington Post report.

Forced arbitration silences survivors of sexual assault and harassment,” Harris said at the event. “It shields predators instead of holding them accountable and gives corporations a powerful tool to hide abuse and misconduct.”

Through a White House official, CNN confirmed that more than 60 million U.S. workers are subject to mandatory arbitration clauses in the workplace. In many cases, workers bound to such arbitration clauses are unaware of the ramifications until they bring a claim against an employer.

Some facts related to workplace arbitration clauses confirmed by CNN include:

  • Such clauses have long been a standard workplace practice, included in millions of employment contracts.
  • An arbitration clause limits the legal options for employees who are victims of sexual harassment and sexual assault.
  • The clause makes it difficult to hold companies and employers accountable for wrongdoing.
  • Arbitration can be very costly, which also places a large burden on workers.
  • Arbitration does not allow for the option of an appeal.

At the ceremony, Gretchen Carlson expressed her support for the new law.

A lot of good will come from this law change,” she said, adding that she believes it “will have a dual effect.”

“It’s going to help companies get on the right side of history and be more transparent. But I believe it’s also going to stop the bad behavior, because now everyone will know that women’s voices can be heard,” Carlson added.

The lawmakers in attendance from both sides of the political aisle included:

  • Senator Kirsten Gillibrand, a New York Democrat
  • Senator Lindsey Graham, a South Carolina Republican

Gillibrand and Graham co-sponsored the Senate version of the bill. They were joined by house counterparts, including:

  • Representative Cheri Bustos, an Illinois Democrat
  • Representative Morgan Griffith, a Virginia Republican

Attorney General Merrick Garland and Secretary of Labor Marty Walsh were reportedly also in attendance.

According to CNN, “the signing marks a significant bipartisan legislative achievement and the delivery on one piece of his [President Biden’s] campaign pledge to ban employers from requiring employees to enter arbitration agreements.”

Additionally, a Biden Administration official confirmed to CNN that the White House is continuing to push for broader legislation to expand the crackdown on other forced arbitration matters beyond sexual assault and sexual harassment, including arbitration of claims regarding discrimination on the basis of race, wage theft, and unfair labor practices.

Following the event, Senate Majority Leader Charles E. Schumer said from the Senate floor, “We can’t ignore a basic reality of these clauses: They deprive victims of sexual harassment and assault of their basic rights by mandating that they seek remedy only behind the closed doors of private arbitration, with no other alternative.”

The Washington Post noted that the #MeToo movement “helped spur momentum for the bill after more victims spoke out about how they could not sue perpetrators because they had unwittingly signed such clauses.”

In February, the House passed the bill with a 335-97 vote, while the Senate passed it on a voice vote.

During President Biden’s State of the Union address just days before the signing of the new law, he called on Congress to pass the Protecting the Right to Organize Act (also known as the PRO Act). Among the provisions within the PRO Act, employers would be limited in their ability to require workers to engage in arbitration agreements.

What is Quid Pro Quo Sexual Harassment in the Workplace?

In 2020, we posted a blog outlining what quid pro quo sexual harassment in the workplace entails.

Quid pro quo sexual harassment involves a proposed exchange:

“If you (the survivor) do a sexual act for me…
Then I (the perpetrator) will do something for you.”

Directly translated, the Latin phrase “quid pro quo” means “this for that.” This type of sexual harassment is most often encountered in the workplace. A common example of a quid pro quo sexual harassment scenario involves an employee being considered for a promotion and a manager either directly saying (or suggesting) that the employee will have a better chance of securing the promotion if she or he agrees to engage in any type of intimate behavior with said manager.

The essence of quid pro quo sexual harassment is the harasser’s position of power relative to the survivor. In instances of quid pro quo sexual harassment, the harasser has the authority to either promise a benefit to the survivor or threaten him or her with a workplace consequence.

How Does California Law Define Workplace Sexual Harassment?

The Equal Employment Opportunity Commission identifies two types of sexual harassment claims:

  • Quid pro quo (as explained above)
  • Hostile workplace environment

Section 1604.11(a) of the Code of Federal Regulations (CFR) defines quid pro quo harassment in the following terms:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, [and when] (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.”

More precisely, quid pro quo sexual harassment involves an unwelcome request for a sexual act that – whether accepted or rejected – will have a correlating consequence or effect (typically affecting one’s employment).

Additionally, section 1604.11(a) of the CFR defines hostile environment sexual harassment as:

“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment … [when] such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”

How Can I File a Workplace Sexual Assault or Harassment Claim?

Dordulian Law Group’s (DLG) workplace sexual assault and harassment lawyers are available 24/7 for free, confidential, and no obligation consultations. If you’re considering pursuing a workplace sexual assault or harassment claim against your employer, we’re here to listen to the facts of your incident, believe you, support you, and fight to protect your right to justice and maximum financial compensation.

With more than 25 years of experience helping sexual assault survivors secure the justice they deserve, DLG’s team is dedicated to working tirelessly to develop a wining legal strategy for you that seeks to recover a maximum financial damages award for your workplace sexual assault or harassment civil claim.

Contact a Los Angeles, California, Workplace Sexual Assault/Harassment Lawyer Today

DLG’s unique SAJE Team (Sexual Assault Justice Experts) offers survivors access to a four-tiered team of dedicated professionals that is here to help you through the litigation process. Contact us today to answer any questions regarding your workplace sexual assault or harassment claim.

Our Sexual Assault Justice Experts are here to help survivors secure justice. Contact our top-rated attorneys online or by phone for a free consultation today.

Some examples of our recent sexual assault civil case victories include:

For a free and confidential consultation regarding your workplace sexual assault or harassment civil claim, contact a member of DLG’s SAJE Team today at 818-322-4056. Our sex crime attorneys have helped victims recover more than $100,000,000 in settlements and verdicts while maintaining a 98% success record.

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