The publication is reproduced in full below:
ENDING FORCED ARBITRATION OF SEXUAL ASSAULT AND SEXUAL HARASSMENT ACT
OF 2021
Mr. NADLER. Madam Speaker, pursuant to House Resolution 900, I call up the bill (H.R. 4445) to amend title 9 of the United States Code with respect to arbitration of disputes involving sexual assault and sexual harassment, and ask for its immediate consideration in the House.
The Clerk read the title of the bill.
The SPEAKER pro tempore. Pursuant to House Resolution 900, in lieu of the amendment in the nature of a substitute recommended by the Committee on the Judiciary printed in the bill, an amendment in the nature of a substitute consisting of the text of Rules Committee Print 117-29 is adopted and the bill, as amended, is considered read.
The text of the bill, as amended, is as follows:
H.R. 4445
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled.
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021''.
SEC. 2. PREDISPUTE ARBITRATION OF DISPUTES INVOLVING SEXUAL
ASSAULT AND SEXUAL HARASSMENT.
(a) In General.--Title 9 of the United States Code is amended by adding at the end the following:
``CHAPTER 4--ARBITRATION OF DISPUTES INVOLVING SEXUAL ASSAULT AND
SEXUAL HARASSMENT
``Sec.
``401. Definitions.
``402. No validity or enforceability.
``Sec. 401. Definitions
``In this chapter:
``(1) Predispute arbitration agreement.--The term
`predispute arbitration agreement' means any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.
``(2) Predispute joint-action waiver.--The term `predispute joint-action waiver' means an agreement, whether or not part of a predispute arbitration agreement, that would prohibit, or waive the right of, one of the parties to the agreement to participate in a joint, class, or collective action in a judicial, arbitral, administrative, or other forum, concerning a dispute that has not yet arisen at the time of the making of the agreement.
``(3) Sexual assault dispute.--The term `sexual assault dispute' means a dispute involving a nonconsensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18 or similar applicable Tribal or State law, including when the victim lacks capacity to consent.
``(4) Sexual harassment dispute.--The term `sexual harassment dispute' means a dispute relating to any of the following conduct directed at an individual or a group of individuals:
``(A) Unwelcome sexual advances.
``(B) Unwanted physical contact that is sexual in nature, including assault.
``(C) Unwanted sexual attention, including unwanted sexual comments and propositions for sexual activity.
``(D) Conditioning professional, educational, consumer, health care or long-term care benefits on sexual activity.
``(E) Retaliation for rejecting unwanted sexual attention.
``Sec. 402. No validity or enforceability
``(a) In General.--Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver 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.
``(b) Determination of Applicability.--An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an agreement to which this chapter applies shall be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement, and irrespective of whether the agreement purports to delegate such determinations to an arbitrator.''.
(b) Technical and Conforming Amendments.--
(1) In general.--Title 9 of the United States Code is amended--
(A) in section 2, by inserting ``or as otherwise provided in chapter 4'' before the period at the end;
(B) in section 208--
(i) in the section heading, by striking ``Chapter 1; residual application'' and inserting ``Application''; and
(ii) by adding at the end the following: ``This chapter applies to the extent that this chapter is not in conflict with chapter 4.''; and
(C) in section 307--
(i) in the section heading, by striking ``Chapter 1; residual application'' and inserting ``Application''; and
(ii) by adding at the end the following: ``This chapter applies to the extent that this chapter is not in conflict with chapter 4.''.
(2) Table of sections.--
(A) Chapter 2.--The table of sections for chapter 2 of title 9, United States Code, is amended by striking the item relating to section 208 and inserting the following:
``208. Application.''.
(B) Chapter 3.--The table of sections for chapter 3 of title 9, United States Code, is amended by striking the item relating to section 307 and inserting the following:
``307. Application.''.
(3) Table of chapters.--The table of chapters for title 9, United States Code, is amended by adding at the end the following:
``4. Arbitration of disputes involving sexual assault and sexual harassment...............................................401''.....
SEC. 3. APPLICABILITY.
This Act, and the amendments made by this Act, shall apply with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act.
The SPEAKER pro tempore. The bill, as amended, shall be debatable for 1 hour equally divided and controlled by the chair and ranking minority member of the Committee on the Judiciary or their respective designees.
After 1 hour of debate, it shall be in order to consider the further amendment printed in part B of House Report 117-241, if offered by the Member designated in the report, which shall be considered read, shall be separately debatable for the time specified in the report equally divided and controlled by the proponent and an opponent, and shall not be subject to a demand for a division of the question.
The gentleman from New York (Mr. Nadler) and the gentlewoman from Minnesota (Mrs. Fischbach) each will control 30 minutes.
The Chair recognizes the gentleman from New York (Mr. Nadler).
General Leave
Mr. NADLER. Madam Speaker, I ask unanimous consent that all Members may have 5 legislative days in which to revise and extend their remarks and insert extraneous material on H.R. 4445.
The SPEAKER pro tempore. Is there objection to the request of the gentleman from New York?
There was no objection.
Mr. NADLER. Madam Speaker, I yield myself 3 minutes.
Madam Speaker, H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, would restore access to justice for survivors of sexual assault or sexual harassment who are forced to settle their disputes against their harassers and abusers in a private system of arbitration that is often stacked against them.
Arbitration was originally developed as an alternative to the court system for parties of relatively equal bargaining power to enter into voluntarily. In recent decades, however, forced arbitration clauses have become ubiquitous in our lives, largely in the form of take-it-or-
leave-it contracts between very large companies and individual consumers. As a result, these clauses have rendered our court system, in which plaintiffs have far stronger protections, inaccessible to far too many.
Nowhere is that trend more apparent or problematic than in the workplace. It is projected that, by 2024, 80 percent of private-sector workers will be forced to sign an arbitration clause when accepting employment. And consider that, over the past 5 years, employers prevailed over their employees in 98 percent of these arbitration cases. But these numbers cannot capture the true human toll of forced arbitration.
Last November, the Judiciary Committee heard powerful testimony from four survivors of sexual assault and sexual harassment about their harrowing experiences and the deep wounds they continue to carry with them to this day. It was a hearing none of us will forget, and we appreciate these brave women coming forward and sharing their stories.
Each of these women was subject to horrific treatment by a person with power over their lives. Then, when they sought to hold their assailants accountable in court, they were forced to relive the trauma of their harassment and assault to find that their only recourse was a secretive arbitration process that was stacked against them.
Forced arbitration clauses, buried deep in the fine print of the paperwork required as a condition of employment, have bound workers to a system in which they are nearly guaranteed to fail, foreclosed the possibility of ever having their day in court, and in almost every case taken away their right even to discuss their experience.
The company gets to pick the judge and the jury, truncate the discovery process, choose the law applied, and prevent all appeals. When the company wins, it can request that the victim pay its attorney's fees, and it can ensure that misconduct never sees the light of day.
H.R. 4445 removes these barriers to justice for survivors of sexual assault or sexual harassment by giving them a real choice of whether to go to court or to arbitrate their claim.
In doing so, this legislation ends this unjust and, frankly, repulsive system in which American companies are better off retaliating against victims of sexual assault than taking responsibility and holding perpetrators responsible for their horrific actions.
Madam Speaker, I include in the Record a letter to Members of Congress dated February 4, 2022, and a letter to House leadership dated February 7, 2022, both from organizations in support of H.R. 4445.
February 4, 2022. Re Pass the Ending Forced Arbitration of Sexual Assault and
Sexual Harassment Act of 2021 (HR. 4445).
Dear Members of Congress: On behalf of the undersigned organizations, we write in support of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445), a bill that would provide important new opportunities for individuals who experience sexual harassment and assault to seek justice without being forced into closed-door and secretive forced arbitration proceedings, where the deck is too often stacked against them.
Today, individuals are routinely forced to sign an arbitration clause to resolve disputes as a condition of obtaining a job or purchasing a good or service, often through language buried in fine print. Many individuals who sign such documents have no idea they have waived the ability to enforce their rights in court. Arbitrators are often chosen and paid by companies. There is no public record of the proceedings or the outcome, and rarely an opportunity to appeal the arbitrator's decision. Many who come forward with reports of sexual harassment or sexual assault, cannot afford legal counsel. The arbitration clause may force them to bear some of the significant costs of the arbitration. The resolution of their disputes may fail to make them whole for the harm they have suffered.
The lack of public accountability enabled by forced arbitration has played a harmful role in allowing sexual harassment and assault to persist in the shadows. In the four years since #MeToo went viral, thousands of individuals, disproportionately women, have come forward to share their experiences--many several years after the fact--and to demand justice. When women and all those who have experienced assault and harassment share their stories, it gives others the courage to come forward as well. But when women who report such conduct are forced into arbitration, that secretive process with no public accountability further silences survivors, and employers and companies can continue to employ and protect serial sexual harassers.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act is an important step towards restoring power to survivors of sexual assault and sexual harassment by ensuring they will not be forced into arbitration. It is admittedly a partial solution, as no individual should be forced to waive their ability to fully enforce their rights to be free from other forms of unlawful harassment, discrimination, and exploitation, whether as workers, as consumers, as patients, or as students. We are therefore hopeful that as a complement to this bill, Congress will quickly take up and pass the FAIR Act (H.R. 963) and Restoring Justice for Workers Act (H.R. 4841), which would ensure that companies can no longer circumvent the legal system by forcing individuals into arbitration. But the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act represents an important partial restoration of individuals' rights to seek accountability and justice. Accordingly, we urge you to support this legislation. If you have any questions, please contact Emily Martin
([email protected]) at the National Women's Law Center.
Sincerely,
National Women's Law Center, National Employment Law Project, National Employment Lawyers Association.
____
February 7, 2022.
Dear Speaker Pelosi and Minority Leader McCarthy: We, the undersigned groups, support passage of H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. This bipartisan bill would empower survivors of sexual assault and sexual harassment by allowing survivors of sexual harassment and sexual assault to file a case in court rather than be forced into arbitration. Survivors of sexual assault and sexual harassment would be able to hold perpetrators and institutions accountable outside of closed- door arbitration proceedings and shine light on systemic issues of wrongdoing. According to actor Eliza Dushku, one of several witnesses who testified under the protection of congressional subpoenas, at a powerful hearing last November on H.R. 4445, forced arbitration ``protects the harassers, the abusers, the corporations, and it isolates the victims .
. . [it] creates a culture of silencing.''
Many of the undersigned groups oppose the use of forced arbitration against all consumers and workers. Predispute binding arbitration clauses and class action waivers, together known as forced arbitration clauses, are typically buried in ``take-it-or-leave it'' agreements that waive an individual's fundamental rights to seek accountability in court when they are hurt or when their rights are violated. These clauses deprive people of the opportunity to hold wrongdoers accountable, no matter how widespread or egregious the misconduct may be; and they also allow all types of abuse, discrimination, and fraud to go unchecked.
In the privatized system of forced arbitration, there is no judge or jury, and the right to appeal is severely limited. Arbitrators do not have to follow the law or precedent. And proceedings take place behind a veil of secrecy that insulates perpetrators from public accountability. That is why thousands of Google workers around the world walked off the job in late 2018 to protest, among other things, Google's use of forced arbitration clauses to hide mistreatment of workers who alleged harassment and discrimination against high-level executives. Also in 2018, in a rare gesture of bipartisanship, all 56 attorneys general (in every state, the District of Columbia, and territories) urged Congress to immediately enact legislation that would ban forced arbitration for sexual harassment claims. The letter said,
``Victims of such serious misconduct should not be constrained to pursue relief from decision makers who are not trained as judges, are not qualified to act as courts of law and are not positioned to ensure that such victims are accorded both procedural and substantive due process.''
The Senate companion bill, which passed the Senate Judiciary Committee on a voice vote, has ten Republican co- sponsors, and support continues to grow. Conservative commentator and women's rights advocate Gretchen Carlson, who has been a vocal opponent of the way forced arbitration clauses are used to silence victims of sexual harassment, recently said that passing H.R. 4445 ``will be a victory for American workers and I am incredibly optimistic this is going to be the law of the land.''
H.R. 4445 has widespread, bipartisan support inside and outside the walls of Congress. We urge all Members of the House to vote for this important legislation. Your staff should feel free to reach out to Remington A. Gregg should you have any questions.
Sincerely,
American Association for Justice, American Civil Liberties Union, Alliance for Justice, American Family Voices, Americans for Financial Reform, Center for Disability Rights, Center for Economic Justice, Center for Justice & Democracy, Citizen Works, Consumer Action.
Consumer Federation of America, Consumer Reports, Consumer Watchdog, Consumers for Auto Reliability and Safety, Center for Progressive Reform, Disability Rights Education & Defense Fund, Earthjustice, Economic Policy Institute, Essential Information, FORGE, Inc.
Googlers for Ending Forced Arbitration, Impact Fund, Justice for Migrant Women, The Leadership Conference on Civil and Human Rights, Maryland Consumer Rights Coalition, Mazzoni Center, National Association of Consumer Advocates, National Black Justice Coalition, National Consumer Law Center (on behalf of its low income clients), National Consumers League.
National Disability Rights Network (NORN), National Employment Law Project, National Organization for Women, People's Parity Project, Public Citizen, Public Good Law Center, Public Law Center, SC Appleseed Legal Justice Center, Service Employees International Union (SEIU), Texas Watch.
The Army of Survivors, URGE: Unite for Reproductive & Gender Equity, Women Employed, Woodstock Institute, Workplace Fairness, YWCA USA.
Mr. NADLER. I thank my colleagues, Representatives Bustos, Griffith, Jayapal, and Buck, for their leadership on this issue. I urge my colleagues to support this bipartisan legislation, and I reserve the balance of my time.
Mrs. FISCHBACH. Madam Speaker, I yield myself such time as I may consume, and I thank my colleague from New York for yielding me the customary 30 minutes.
We are here today to discuss H.R. 4445. Sexual harassment and sexual assault are despicable actions. Victims of sexual harassment and assault must have their claims heard, and they should not be silenced or intimidated into silence.
The Judiciary Committee heard important testimony from victims of sexual harassment and assault. It took real courage for those victims to tell their stories to us. What those women, and many more women around the country, have had to face is terrible, and sexual harassment should not be tolerated.
H.R. 4445 would not make victims better off. And no matter how well-
intentioned the bill may be, it raises real policy concerns.
The committee received testimony from experts explaining the bill's flaws. For example, this bill's supporters seem to assume that all arbitration is secret, that arbitration automatically keeps victims from going to the authorities or publicizing their experiences.
That is not accurate. Arbitration is not intrinsically secret or otherwise confidential. Put simply, agreeing to resolve a case outside of court is different than agreeing to silence.
That distinction matters today because much of the argument for this bill comes from concerns about secrecy rather than whether justice can be served in the arbitration context.
Despite that emphasis, H.R. 4445 does not actually address confidentiality or nondisclosure agreements. Even if this bill is enacted, it is still possible that separate contract provisions could be used to impose confidentiality or keep details about an employer under wraps.
But in all likelihood, this bill would effectively end most arbitration in these contexts, even when arbitration would benefit a victim, because the bill fundamentally changes an arbitration clause from a mutual commitment to use an alternative dispute resolution into a one-sided election for an injured party.
If H.R. 4445 becomes law, contracts will be far less likely to include the option to arbitrate. If parties cannot agree in advance to arbitrate, the plaintiffs may never have access to arbitration. These unintended consequences will have real-world implications, especially for victims who lack deep pockets or do not have the possibility for a high-dollar settlement that some high-profile cases can obtain.
Lawsuits are often long and expensive, and big corporations have more resources to litigate than most victims. Litigation can be harrowing for victims who, in traditional litigation, must submit to rigorous discovery, depositions, or perhaps even the challenges of a public trial. And it may even be harder for victims to tell their stories in litigation and get justice, given the rules of evidence that may apply.
Democrats cast aside these concerns, and they ignore how arbitration is generally a good way to resolve disputes.
Why are some in Congress so intent on taking this legislation forward today? For years, Democrats have tried to gut arbitration agreements for all kinds of different claims and plaintiffs. If Democrats had their way, everyone--from consumers to civil rights plaintiffs, to those with antitrust claims, to individuals using financial service products, and others--would not be able to contract in advance to resolve disputes through arbitration. Instead, they would be forced into the courts.
Congress should stand ready to improve the legal system, but we must make sure that whatever Congress does will actually be an improvement. What we have before us today is Congress changing existing and agreed-
to contracts.
I have real concerns about government retroactively nullifying existing contractual agreements, no matter how well-intentioned it is.
I urge you all to carefully consider the ramifications of H.R. 4445.
Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 4 minutes to the gentlewoman from Illinois (Mrs. Bustos), the sponsor of this bill.
Mrs. BUSTOS. Madam Speaker, I rise to speak enthusiastically in support of my bill, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.
Five years ago, The Washington Post published a story that shocked me to my core. Madam Speaker, 69,000 women were suing Sterling, Inc., for sexual harassment, sexual assault, and sexual discrimination. Sterling is the parent company of Kay and Jared Jewelers.
And, yes, I did say 69,000. I had to double-check that over and over--not 69, not 6,900--69,000 women.
``If you didn't do what he wanted with him, you wouldn't get your''--
preferred--``store or raise.'' That is what Sanya Douglas, a former employee, testified.
``A boozy, no-spouses-allowed `sex fest,' where attendance was mandatory and women were aggressively pursued, groped, and harassed.'' That is how meetings at the company were described.
``You were meat, being shopped.'' That is how a former employee described her workplace.
Each story was more disturbing than the story before it: managers demanding sexual acts in exchange for employment benefits; company events where women were expected to undress publicly. In one story, a former employee attended an overnight meeting where she woke up with her underwear pushed down to her ankles, a manager raping her.
This type of sexual perverseness in the workplace went on for years, and it all stayed secret. And the reason for that secrecy? Because of one single legal clause hidden deep down in these women's employment paperwork, a clause that says if a claim arises between an employer and an employee, it must go to arbitration, and taking a case like this to court is prohibited.
My bill would make it illegal to enforce agreements that mandate third-party arbitration, which is a type of legal dispute resolution that is conducted behind closed doors and often favors the employer.
Seems simple, right? Well, that one tiny clause protected a company of abusers and silenced those 69,000 women just at Sterling, Inc. That is just one single company we are talking about.
But the stories go on, and the bad actors aren't just at workplaces. While 60 million--that is 60 million--Americans are working under these forced arbitration clauses through their employers, the real number of people impacted by this incredibly common pitfall is huge. Many more millions of Americans have signed away their rights through property leases, ride-share applications, moving companies, nursing homes, grocery deliveries.
That terms and conditions box that we have all simply checked off after downloading an app or hiring a service might just have an arbitration clause hiding in it, ready to strip away your right to go to court if you have been sexually harassed or sexually assaulted and you choose to go to court.
{time} 1715
While some companies have already eliminated this abusive practice--
thank you to them--it is time to do away with these legal traps for good.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act will invalidate any forced arbitration clause in any contract or agreement in the case of sexual assault or harassment.
And I am proud to say that my bill has widespread support among Republicans and Democrats over at the Senate and here at the House.
I thank those that have helped us get here today. I thank Pramila Jayapal, Morgan Griffith, Ken Buck, David Cicilline, Chairman Nadler, Senators Gillibrand, Lindsey Graham and Dick Durbin, and our fearless champion on this, Gretchen Carlson.
I urge my colleagues to support this bill, and I look forward to the day when our sexual assault survivors can have their day in court.
Mrs. FISCHBACH. Madam Speaker, I yield 2 minutes to the gentleman from Virginia (Mr. Griffith).
Mr. GRIFFITH. Madam Speaker, I rise today in support of H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.
I believe pre-dispute arbitration agreements are useful in some circumstances. They can allow common, foreseeable disagreements to be resolved quickly and efficiently, but we must acknowledge in the case of sexual assault and sexual harassment, nobody signs on to an employment agreement thinking that oh, I am going to be sexually harassed or I am going to risk sexual abuse. They don't sign up for that. And most of these contracts, Madam Speaker, are what we call adhesion contracts. You have to accept it.
And what often happens is there will be a couple of pages that have all the big items: Terms of the employment, salary, promotion, vacation. And then they will incorporate a handbook. The handbook will then have buried in it language that says all disputes must go to mandatory arbitration. And oftentimes the people who are doing the arbitrating aren't lawyers. The rules of evidence aren't applied. The rules of law are not applied. It is just how they feel after they hear everything.
This has created a situation that, related to sexual assault and sexual harassment, is unconscionable. It shocks the conscience. And in fairness, it is a violation of public policy, in my opinion, and should be eliminated as part of a contract.
I am surprised courts haven't already come to that conclusion, but instead of having each court in each of the States and territories make that decision, this act will do it once and for all, and we will have done our jobs to make sure that in these egregious situations the individual who is making the claim and who has probably been assaulted or has been harassed or has some kind of a valid claim will have an opportunity to go to court or have an opportunity to go to binding arbitration, if that is what they choose, but they will have a choice instead of having to go in front of company-picked arbiters who will make a decision for them that will affect them the rest of their lives.
Now, I will tell you that it is important that we move forward with this bill, and it looks like things are going well, but you never know. But I will also tell you that there has been an allegation that it is retroactive--and that is not accurate--as to cases currently pending. It is accurate as to contracts currently signed.
Mr. NADLER. Madam Speaker, I yield 2 minutes to the gentlewoman from Washington (Ms. Jayapal).
Ms. JAYAPAL. Madam Speaker, this is a landmark day. H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, will ensure that tens of millions of people are no longer silenced in instances where there is sexual harassment and sexual assault.
These forced arbitration agreements require that people with disputes against a company use a secretive, one-sided mediation process instead of the judicial system. Sexual assault and sexual harassment survivors with claims against a company are stripped of the right to decide how to pursue accountability for their perpetrator. It is a lose-lose scenario. People are left with little alternative but to sign these agreements, and yet, they often face retaliation and backlash when they are pursuing their claims.
This bipartisan bill is essential for survivors like Tatiana Spottiswoode, who bravely testified under the protection of a friendly subpoena at a House Judiciary Committee hearing. Tatiana needed that protection because forced arbitration took away all of her rights to speak publicly about the severe harassment that she had endured from her boss and her abuser, former CEO of Afiniti, Zia Chishti. At the hearing, Tatiana testified that ``the person who changed my life forever continues to abuse me because forced arbitration gives him the power to do it in secret.''
Tatiana's freedom to discuss her experiences publicly had real impact. Mr. Chishti was finally fired, and the former Prime Minister of the U.K. resigned from the advisory board of her abuser's company. Her story, and countless others like hers, show why this bill is so critical.
I am so proud to colead this bill with the incredible Representative Cheri Bustos. And I thank Representative Bustos and Representative Morgan Griffith and Representative Ken Buck for their leadership, as well. No one should have to endure what happened to Tatiana and so many others like her. We have an opportunity in the House of Representatives to set this right for millions of brave survivors.
Vote ``yes'' to pass H.R. 4445.
Mrs. FISCHBACH. Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the distinguished gentleman from New York (Mr. Jeffries).
Mr. JEFFRIES. Madam Speaker, I thank the distinguished chair of the House Judiciary Committee for yielding and for his leadership. I thank my good friend and colleague Representative Cheri Bustos for her leadership.
The people of America, the women of America have a right to be free of sexual harassment. The women of America have a right to be free of sexual assault. The women of America have a right to be free of a hostile work environment. They deserve their day in court.
The process and practice of forced arbitration undermines these rights without providing an adequate remedy. The American people are being hoodwinked. The American people are being bamboozled. The American people are being led astray by forced arbitration.
This practice of forced arbitration is unfair, unjust, unacceptable, unconscionable, and un-American.
H.R. 4445 will make it unlawful.
I urge strong support for this legislation so that liberty and justice for all can prevail.
Mrs. FISCHBACH. Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 1 minute to the gentleman from Georgia (Mr. Johnson).
Mr. JOHNSON of Georgia. Madam Speaker, I thank the chairman for allowing me to speak, and I want to commend my colleague, Representative Cheri Bustos, for introducing this very important legislation.
It is a travesty of justice for a woman to be subjected to sexual harassment and even sexual assault on the job. Oftentimes, it takes place in a job setting where there is a culture of sexual harassment and sexual assault.
And when these women find after they have been assaulted that they are barred from going to court because somehow they have been hoodwinked into a forced arbitration agreement with their employer, they are surprised because at that point they have been assaulted for a second time because when they go into arbitration you often find that the deck is stacked against the victim in favor of the perpetrator.
This legislation gets at that problem by making those kinds of agreements unenforceable. I fully support this legislation. I would ask all of my colleagues to support it. It is good, commonsense legislation.
Justice is all that is asked for.
Mrs. FISCHBACH. Madam Speaker, I yield 2 minutes to the gentleman from Florida (Mr. Gaetz).
Mr. GAETZ. Madam Speaker, I thank the gentlewoman for yielding.
For the fourth consecutive year I rise as one of the few but faithful Republicans in strong support of this good legislation.
Here is the question presented: Should sexual harassers who work for big businesses get to pick their juries in advance? I think that the populist, nationalist, right approach is to believe that the Article III courts that we have set up for any and all function as the proper venue.
But for tens of millions of American workers, that courthouse door is locked. It is closed. It is inaccessible. The result is that a system exists for concierge justice, private-sector justice.
The evidence before the Judiciary Committee undeniably is that big business wins more cases, shuts down more awards, and is able to reduce awards in the arbitration setting as opposed to the setting that anybody else would be able to enter in a taxpayer-funded court. That is wrong.
We have all heard about the fine print in this country. No one reads the fine print. But the fine print shouldn't be a reason that someone is more likely to have to endure sexual harassment in the workplace or more likely to evade consequence as the result of predatory behavior.
I especially thank the majority for incorporating a number of the minority's views to make this bill stronger and more likely to become law, and I sincerely hope that I am not here for a fifth year advocating for its passage again.
Mr. NADLER. Madam Speaker, I yield 3 minutes to the gentlewoman from Texas (Ms. Jackson Lee), a distinguished member of the Judiciary Committee.
Ms. JACKSON LEE. Madam Speaker, I thank the distinguished chairman for his leadership, and I thank my distinguished friend from Illinois, Congresswoman Bustos for her constant determination.
It is wonderful that H.R. 4445 is restoring freedom and justice to women. It is a bipartisan piece of legislation that will not allow any pre-dispute arbitration agreement or pre-dispute joint action waiver to be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to a sexual assault dispute or sexual harassment dispute.
I am glad to hear friends on the other side, as this is a bipartisan bill, acknowledge the fact that this is an absolute injustice; an injustice that befalls a certain segment of the population, and that is women.
One of the cases that is most stark is the one of Stefani Bambace. Many witnesses came before us in the Judiciary Committee. Witness after witness gave us horror stories of isolation and fear and the absolute inability, because of the fine print, to do anything about it.
Stefani Bambace alleged that she worked in a sexually charged and hostile work environment, including being subjected to sexually explicit language from her employer, sexual advances and groping. Let me say that again. Touching in her space from her employer, sexual advances and groping and explicit images. How can you work as a professional or anyone? Think of the levels of work that women are in; from domestic to as high a level as scientists and CEOs. But yet, they are subjected to this kind of behavior.
According to Ms. Bambace's petition, she complained to human resources to no avail about the harassment. And guess what her relief was? Guess what empathy was shown? Guess what comfort and reforming the system was? It was her being fired. That is right. She was fired. How many stories of women are there, that are yet not told, who were fired?
And so this agreement of which my colleague has worked on, and we are pleased in the Judiciary Committee to be part of moving this legislation, this will end these arbitration agreements that are snuck into a packet of materials that you sign.
It is imperative we pass it, but more importantly Madam Speaker, it is imperative that it is passed in the Senate because it is bipartisan, but it is signed by the President and becomes law.
I thank Ms. Bambace and all of the witnesses that came before us. They sacrifice, they suffered, but yet today, hopefully, will be an announcement, a pronouncement of freedom and justice for women who have struggled with this all of the time.
H.R. 4445 is a relief that is a long time in coming, and it should move away from blind, silent, quiet agreements that no one knows what it is. Freedom and justice for women in the workforce today.
Madam Speaker, I rise to speak in strong support of H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.
This bill will amend Title 9 of the United States Code, empowering survivors of sexual assault and harassment by restoring their access to justice and public accountability under the law.
By ending forced arbitration in lawsuits involving these claims, survivors of sexual assault or sexual harassment are empowered with making the decision on whether they wish to pursue legal action against their assailants which often includes going to court to arbitrate their claims.
It is estimated that 60 million Americans have signed away their right to seek real justice and most don't realize it until they try to get help.
H.R. 4445 will not allow any pre-dispute arbitration agreement or predispute joint-action waiver to be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to a sexual assault dispute or a sexual harassment dispute.
In the Judiciary markup which brought this bill to the floor, survivors of sexual harassment and sexual assault shared their stories with the committee about their devastating experiences and the subsequent arbitration process they were forced to endure as a condition of their employment.
The #MeToo movement chipped away at the culture of secrecy that protects predators and silences survivors.
Ending mandatory arbitration has the power to ensure that survivors of sexual harassment and discrimination in the workplace have their voices heard.
For example, in Bambace v. Berry Y&V Fabricators, LLC, Stefani Bambace alleged that she worked in a sexually charged and hostile work environment, including ``being subjected to sexually explicit images from her employer, sexual advances, and groping.''
According to her petition, she complained to Human Resources about the harassment and was fired three weeks later.
She filed a lawsuit alleging violations of Chapter 21 of the Texas Labor Code.
Like more than half of non-unionized American workers, Bambace was subject to an employer promulgated arbitration agreement.
These arbitration agreements are often snuck into a packet of materials employers give employees on their first day of employment to sign and they are rarely negotiated or even discussed.
In a well-reasoned opinion in Bambace, the Court held that the arbitration agreement, which required the Plaintiff to litigate sexual harassment claims in confidential and binding arbitration, violated public policy, injured the public good, and was therefore void and unenforceable.
Critically, the Court further rejected Defendant's argument that the arbitrator, not the Court, should determine whether the sexual harassment claims were subject to arbitration.
Fortunately, in the Bambace case Harris County Judge Lauren Reeder understood that cases such as these should be determined by a court, rather than an arbitrator irrespective of whether the agreement purports to delegate such determinations to an arbitrator.
This is just one story out of millions where forced arbitration agreements attempt, and usually succeed, to silence sexual assault and sexual harassment victims.
These forced ``agreements'' strip survivors of the right to decide how to pursue accountability of their predators.
Instead, these survivors' stories are heard in secret, behind closed doors, and do little to nothing to stop the systematic abuse from occurring again.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 will ensure that these survivors will have their voices heard in a court of law if they choose to do so.
No survivor of sexual harassment or sexual assault should be forced into silence, especially by a piece of paper buried within their employment agreement.
Forced arbitration allows companies to hide and shield sexual predators and keep employees from knowing that their other colleagues could be victims of the same person.
Voiding these clauses in sexual harassment and discrimination cases would aid victims by pulling back the veil of secrecy on bad behavior in the workplace.
More than 56% of Americans are subject to these mandatory arbitration agreements.
These victims deserve the right to choose to go to court, it should not be in the hands of their employer.
A 2011 Cornell University study found that employees are less likely to win arbitration cases.
These corporations embrace arbitration because it is a cheaper and faster way to settle disputes and can cut down frivolous lawsuits.
Corporations do not want to face juries because they know citizens will punish them for their wrongdoing, so they sneak arbitration language into their take-it-or-leave-it contracts.
Forced arbitration is a sexual harasser's best friend, it is an issue of fundamental human rights.
Eliza Dushku, an actress, testified that she had been fired from the CBS prime-time drama ``Bull'' after she asked her co-star, Michael Weatherly, a producer on the show, to stop harassing her.
She said he had made rape jokes about her and had told her in front of dozens of cast and crew members that he wanted to be in a threesome with her.
She said she had later learned that the contract she signed with CBS included a forced arbitration clause.
After a mediation, the company agreed to a confidential settlement that would pay Ms. Dushku $9.5 million.
Situations such as Ms. Dushku's aim to sweep sexual harassment and assault cases under the rug.
Silencing these victims is exactly what forced arbitration agreements are meant to do and I believe we should no longer tolerate this behavior.
This is an excellent and common-sense bill that will ensure victims are not silenced by forced arbitration agreements any longer.
Although we cannot bring justice and a voice for those who have already settled their cases to their arbitration agreements, we can ensure that future victims will be heard and not suppressed in their truth.
{time} 1730
Mrs. FISCHBACH. Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 2 minutes to the gentleman from Rhode Island (Mr. Cicilline), a distinguished member of the Committee on the Judiciary.
Mr. CICILLINE. Madam Speaker, I thank the gentleman for yielding.
Madam Speaker, I heard some of my friends on the other side of the aisle say no one wants this legislation. Nothing could be further from the truth. The survivors of sexual assault and harassment want this, and we should listen to them.
H.R. 4445 would restore access to justice for victims of sexual assault or harassment who are currently locked out of the court system due to forced arbitration clauses. These clauses are everywhere. They block survivors from making their stories known, having their day in court, and prevents them from holding their abusers accountable.
Some of the stories we heard during this hearing were horrific of the kind of abuse and assault and demeaning behavior, and those predators knew that they were protected from being held accountable because there were forced arbitration clauses often accompanied with provisions that kept those proceedings private.
So this private system forces survivors into a process, this forced arbitration, that is not like a court system. There is no discovery. There is no judge or jury. There are no requirements that they follow laws passed by the Congress or the State. And when you, as I said, combine that with nondisclosure agreements, it silences the survivors of sexual harassment and assault. Plain and simple. This bill will end it.
Predators rely on that silence. As long as their actions are hidden, they are free to act with impunity, and we heard evidence that is in fact what they do, over and over and over again. This bill will end that.
Madam Speaker, I thank the sponsor of this legislation, Congresswoman Cheri Bustos, who has made this her life's work since she got to Congress. This bill will help millions of survivors who have had the conduct that they have complained about unaddressed and unanswered and kept quiet, and it will end that practice.
We heard testimony about the founder of Invisalign and the CEO of Afiniti, who actually started an arbitration, invoked the clause, because he knew that would keep the proceedings secret and his abuse would go unaccounted for. This is disgraceful.
Madam Speaker, this should be a unanimous vote. Everyone should want to put an end to this practice. I urge you to vote ``yes'' on H.R. 4445.
Mrs. FISCHBACH. Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the gentlewoman from Pennsylvania (Ms. Scanlon), another distinguished member of the Committee on the Judiciary.
Ms. SCANLON. Madam Speaker, I thank the chairman for yielding.
Madam Speaker, sexual harassment and violence in the workplace are a corrosive and pervasive threat to the success and dignity of all workers, but particularly women. And forced or mandatory arbitration clauses in employment contracts have played an important role in thwarting efforts to hold accountable the predators who engage in such conduct and the companies that allow it to continue.
The widespread use of these clauses in employment contracts forces many Americans to agree to a form of dispute resolution that silences victims of sexual harassment and assault and allows the harassers and employers to escape accountability. These arbitration proceedings overwhelmingly benefit the employer, which drafts the nonnegotiable clauses dictating the venue, the terms of mediation, even the arbitrators themselves, as well as creating a perverse incentive for the allegedly neutral arbiters to rule in favor of employers, lest they not be hired again.
In addition to denying survivors a public forum to expose sexual abuse, which can deter future misconduct, these arbitration clauses also preclude class actions, which is often the only way that employees can afford to bring successful claims.
H.R. 4445 would ban the use of forced arbitration in employment contracts in cases of sexual assault and harassment. In addition to protecting survivors of such harassment, that is just good public policy.
Mrs. FISCHBACH. Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the gentleman from Maryland (Mr. Raskin), another distinguished member of the Committee on the Judiciary.
Mr. RASKIN. Madam Speaker, I thank the chairman for yielding. I salute our colleague, Congresswoman Bustos, for introducing what will certainly be the most important piece of pro-labor legislation to pass out of the 117th Congress. Our Constitution guarantees our people the right to a jury trial, but forced arbitration in the workplace brutally cheats victims of sexual harassment and assault in the workplace out of their right to a trial before a jury of their peers. And by stripping women of this right, forced arbitration is creating corporate cultures of pervasive and severe sexual harassment all across the country, like the one Eliza Dushku faced in Hollywood where she got fired for objecting to constant sexually degrading and humiliating treatment in the workplace.
We heard testimony from women sexually harassed and raped by repeat offenders who have been made proud and contemptuous because their conduct is consistently buried and hidden in regimes of coerced, closed-door arbitration. We have created monsters out of repeat-
offender sexual harassers across the country.
Let's throw the doors open and let's let the sun shine in. Let's restore the full constitutional rights of women in the workplace. Let's pass this legislation.
Mrs. FISCHBACH. Madam Speaker, I yield 3 minutes to the gentleman from Colorado (Mr. Buck).
Mr. BUCK. Madam Speaker, I thank the gentlewoman from Minnesota for yielding.
Madam Speaker, I rise in support of H.R. 4445. This is the way the legislative process should work. This started with a victim of sexual harassment, Gretchen Carlson, who stepped forward and brought a cancer within an organization to light, and did it in a courageous manner. Then my colleague, Congresswoman Cheri Bustos, took on this cause and wrote a good piece of legislation.
But what she did was even more important. She was open to suggestions and often adopted suggestions to make this the very best legislation that it could be. And my friends, Congressman Matt Gaetz and Morgan Griffith, worked alongside her and worked on our side of the aisle to make folks aware of the need for this legislation.
Madam Speaker, I urge my colleagues to support H.R. 4445 because, one, it empowers rape victims to make a choice between arbitration and going to court. It also makes sure that sexual predators are held accountable. And finally, it puts corporations on notice that if they don't clean up their act, they are going to have a big problem. There is no more sweeping an issue like this under the carpet. This is something that corporations are going to take seriously, and they are going to change their conduct as a result of a possible change to their bottom line.
This bill gives Members a choice to support rape victims or rapists. I choose to support the rape victims, the survivors of a terrible ordeal, and I urge my colleagues to do the same.
Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the gentlewoman from Texas (Ms. Garcia), another distinguished member of the Committee on the Judiciary.
Ms. GARCIA of Texas. Madam Speaker, I thank Chairman Nadler for yielding, and I thank the sponsor of this bill, Cheri Bustos, for her hard work.
Madam Speaker, I rise today to express my strong support for this bill, H.R. 4445. As a former judge, I have a very deeply held belief that everybody should have their day in court. It is a simple principle: Everybody should have their day in court. That is the essence of ``justice for all'' in our country. Every time we say the pledge and we end with ``justice for all,'' we have to demonstrate that we mean it.
Survivors of sexual harassment and discrimination in the workplace deserve to have their voices heard. By ending forced arbitration in lawsuits involving sexual assault or sexual harassment claims, we ensure survivors are given a real choice of whether to go to court or to arbitrate their claim. Abusers will no longer be able to misuse arbitration law with dubious agreements and fine-print clauses to hide their violence and silence their victims.
I am proud that we are taking firm, bipartisan action to ensure justice for sexual harassment and sexual assault victims. I am proud that we are making sure that when little kids across America say
``justice for all,'' that it truly means for ``all.''
Madam Speaker, I urge my colleagues to vote ``yes'' on H.R. 4445.
Mrs. FISCHBACH. Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the gentlewoman from North Carolina (Ms. Ross), another distinguished member of the Committee on the Judiciary.
Ms. ROSS. Madam Speaker, I thank the chairman for yielding, and especially thank our colleague, Cheri Bustos, for bringing this important legislation to us.
Madam Speaker, I rise today in support of H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.
In 2017, our country experienced a dramatic and needed shift. Women in a variety of industries responded to news of allegations against powerful men with the hashtag #MeToo, banding together in solidarity to expose predatory behavior that has been overlooked and excused for generations. But some women are still not able to speak out against their abusers because forced arbitration agreements prevent them from doing so.
Last year, the House Committee on the Judiciary heard testimony from women from a variety of backgrounds and political parties, who have suffered the dual injustices of sexual abuse and forced silence through arbitration. Their stories illuminate how forced arbitration agreements are too often used to protect assailants and their companies at the expense of working women. It is past time for Congress to enable these women to reclaim their voices and take control over their own lives.
Madam Speaker, I urge my colleagues to support H.R. 4445.
Mrs. FISCHBACH. Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the distinguished gentlewoman from Connecticut (Ms. DeLauro).
Ms. DeLAURO. Madam Speaker, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act is bipartisan. It is legislation that provides survivors with the resources they need to seek the justice that they deserve and empower them by giving them a choice to go to court instead of being forced into arbitration.
Survivors like Susan Fowler who, in 2015, was working with Uber when her manager started sexually harassing her. She immediately reported this to human resources, but when she did, her manager threatened to fire her. And since Uber employees are forced to sign arbitration agreements when they are hired, preventing them from bringing sexual harassment claims to court, Susan was forced into a confidential dispute forum without the right to appeal.
Three years later, Susan had had enough and she spoke out, writing in an op-ed for the New York Times: ``From the systemic culture of harassment and discrimination at Uber . . . to the ubiquitous stories of women taken advantage of in industries ranging from professional football to restaurants, we have seen one company after another publicly outed and shamed for illegal treatment of employees.''
And Susan rightly asks, ``The question is no longer whether mistreatment actually occurs . . . but what can we do to ensure that it never happens again.''
The answer is simple. We can pass this bipartisan legislation, end the practice of forced arbitration, and I urge my colleagues to vote in favor of this bill.
{time} 1745
Mrs. FISCHBACH. Madam Speaker, I yield 4 minutes to the gentleman from Ohio.
Mr. JORDAN. Madam Speaker, I want to thank the gentlewoman from Minnesota for her great work here in the Congress and for yielding time.
Madam Speaker, I rise in opposition to this legislation. We all know that sexual assault and harassment are as wrong as wrong can be. Victims of sexual harassment and sexual assault must have their claims heard. They must never be silenced or intimidated into silence. But the outrage we rightly feel on behalf of these victims does not mean we should rush to pass a bill that could leave many of them worse off.
In the Judiciary Committee, we heard from experts about why this bill's approach is misguided. For example, some of the bill's supporters repeatedly claim that arbitration is what keeps victims from publicizing their experiences or going to authorities and law enforcement. But arbitration is not automatically secret or otherwise confidential.
Agreeing to resolve a case outside of court is different from agreeing to silence. Arbitration does not prevent anyone from speaking out. Anyone who has agreed to arbitrate may still go to authorities and law enforcement to report the wrongdoing, and well they should.
There is an important distinction between agreeing to arbitrate and agreeing to silence. This distinction matters because much of the push for this legislation comes from concerns about secrecy rather than from an honest assessment of whether arbitration advances justice. Yet despite the focus on secrecy, the text of this bill never actually addresses confidentiality or nondisclosure agreements.
Another key talking point for supporters of this legislation is that it gives plaintiffs more choice over how to resolve disputes, but that is not how arbitration works.
Giving one party the unilateral ability to cancel a two-way agreement to arbitrate will functionally take the option to arbitrate completely off the table. For one thing, contracts will be far less likely to include an option to arbitrate in the first place now. For another, we know that if parties can't agree in advance to arbitrate, then they are unlikely to agree to arbitrate after there has been a dispute. As a result, the plaintiff may never get to arbitration.
More often than not, victims do not have deep pockets or the potential for large-sum litigation settlements like those that are available to high-profile figures. This bill will cause these women to lose the potential benefits of arbitration.
Lawsuits are normally long and costly, and companies often have enough money to vigorously defend these claims. These lawsuits are an ordeal for victims who, in a normal case, must undergo discovery, give depositions, and may even need to give public testimony. The rules of litigation may make it much harder for victims to tell their stories in their own words and get the relief they deserve.
Arbitration can be a welcomed alternative to the rigors and trauma of litigation, but Democrats want to pretend that this bill won't limit access to arbitration for victims of assault.
In reality, the bill is more about empowering the trial bar than actual victims. As drafted, the text gives trial lawyers every incentive to craft complaints and allege sexual harassment or assault to get whole cases out of arbitration and into court.
Ultimately, this bill will empower the plaintiffs' bar in ways that some of its supporters may not intend but that Democrats and trial lawyers certainly do.
For years, Democrats have pursued plaintiffs' lawyers' wish to gut arbitration agreements for all kinds of different claims. If Democrats and the trial bar had their way, everyone from consumers of financial services, to civil rights plaintiffs, to those with antitrust claims and others would be forced into court even if they would rather agree to arbitrate at the outset.
Don't be fooled. What is best for plaintiffs' lawyers is not always what is best for plaintiffs.
Let's ensure whatever legislative vehicle we use actually makes things better. I am very concerned about this legislation and how it will actually play out for victims in practice and for the adverse consequences it could have.
Madam Speaker, for those reasons, I would urge that we oppose the bill.
Mr. NADLER. Madam Speaker, I reserve the balance of my time.
Mrs. FISCHBACH. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, we must consider the unintended consequences of H.R. 4445. This bill has good intentions. We all want to help victims of sexual harassment, but this bill is not going to accomplish that. There are many policy concerns in this piece of legislation.
I want to say again: What we have before us today is that Congress is changing existing and agreed-to contracts. I have real concerns about government retroactively nullifying existing contractual agreements.
If H.R. 4445 becomes law, contracts will be far less likely to include any option to arbitrate. This is a concern for victims who do not have the resources to pursue high-dollar settlements. We must also keep in mind that sometimes arbitration is the best way to solve disputes.
Arbitration does not void an individual's constitutional rights under the Seventh Amendment. This is just one of the many, many aspects of this bill that needs to be reconsidered before we can confidently move forward.
Madam Speaker, I oppose this bill, and I encourage my colleagues to do the same until we address the concerns surrounding this bill.
Madam Speaker, I yield back the balance of my time.
Mr. NADLER. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, removes barriers to justice for survivors of sexual assault or sexual harassment by giving them a real choice of whether to go to court or to arbitrate their claim after the dispute has arisen.
Mr. Jordan is right. Many such victims, if given the choice, will choose to go to court. Why shouldn't they? In arbitration, they lose 98 percent of the cases. The employer wins 98 percent of the cases in arbitration. Why? Well, for one thing, the employer picks the arbitrator, and the arbitrator is paid. So, naturally, the arbitrator wants to rule in such a way that he or she is likely to get hired again.
But 98 percent of the cases brought by women who have been sexually harassed who are in forced arbitration are lost by them. That is why this bill is necessary.
If we want to give women who have been sexually harassed a fair chance at justice, we must pass this bill. If we want to give women who have been sexually harassed a fair chance at winning against their employer who did the sexual harassment or allowed the sexual harassment, we must pass this bill.
That is why this critical measure is supported by a broad coalition of public interest organizations, including the National Alliance to End Sexual Violence, the National Center on Domestic and Sexual Violence, the National Coalition Against Domestic Violence, the National Partnership for Women and Families, RAINN, and many others.
Not one single group that deals with sexual violence opposes this bill. Only employer organizations oppose this bill because it stacks the deck in their favor.
Madam Speaker, I want to thank my colleagues, Representatives Bustos, Griffith, Jayapal, and Buck, for their leadership on this issue, and I urge my colleagues to support this bipartisan legislation.
Madam Speaker, I yield back the balance of my time.
Mr. SCOTT of Virginia. Madam Speaker, I will vote ``yes'' on H.R. 4445, Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. However, l have reservations that certain provisions in the bill lack clarity regarding key issues.
Employers have increasingly relied on forced arbitration clauses to circumvent workers' right to due process. Currently, over 60 million American workers are locked out of the courtroom due to these coercive arrangements that compel them to go through a process that is rigged against them. Forced arbitration undermines workers' recourse for a wide array of employment law violations--not just sexual harassment and sexual assault; this includes wage theft and other employment discrimination issues. With Chairman Nadler, I introduced the Restoring Justice for Workers Act, H.R. 4841, a more comprehensive approach to protect workers' access to the courts and their right to collective action no matter their workplace claim.
Although H.R. 4445 is an important step forward by ensuring that certain individuals who experience ``sexual assault'' and ``sexual harassment'' are not forced to arbitrate their cases based on a pre-
dispute arbitration agreement, I have concerns that the legislation does not go far enough to offer such protections to other vulnerable individuals who need fair access to the courts to vindicate their rights. In the employment context, for example, the bill's singular focus on sexual harassment involving unwelcome sexual advances, propositions, and sexual attention, fails to account for the other, harmful, and common, forms of sex-based harassment that occurs in the workplace. This kind of harassment is not sexual in nature but is motivated by a sex-based animus or hostility. It can involve offensive and derogatory comments about women working in male-dominated industries, physically intimidating conduct directed at men who fail to conform to stereotypical gender norms, as well as posting demeaning and graphic texts and images to make women or men feel uncomfortable in the workplace. These are just a few examples of the non-sexual, sex-based harassment that have been recognized by the Supreme Court and the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that enforces employment civil rights laws. Thus, given the breadth and complexity of sex-based harassment, and the negative impact it can have on individuals who experience it, I have concerns about limiting this bill to a certain type of sexual harassment.
I have similar concerns about the narrow scope of individuals who are included under the bill's definition of ``sexual harassment dispute.'' The bill states that ``the term `sexual harassment dispute' means a dispute relating to . . . conduct directed at an individual or group of individuals.'' The phrase ``directed at'' suggests that the individual or group of individuals must be the target of the harassing conduct to be included in the bill's jurisdiction. In the employment context, however, the EEOC and federal courts have recognized that a harassment victim does not have to be the target of the harassment to have a viable harassment case. A salient example of this scenario is a female employee who works in an environment where male co-workers frequently use gender-derogatory language to describe or insult women, even though the language is not ``directed at'' the female employee. In such a scenario, the female employee could assert that she experienced sexual harassment because even though she was not the direct target of her male co-workers' gender-derogatory language, she worked in a sexually offensive and hostile environment. Therefore, using language in H.R. 4445 that seems to narrow the scope of harassment victims to only those who are the direct target of harassing conduct undercuts this important principle.
I am encouraged that a group of bipartisan Members have introduced an amendment that recognizes some of the limitations of H.R. 4445's definition of ``sexual harassment dispute.'' This amendment
``[c]larifies that, for the purposes of the bill, sexual harassment dispute is defined as a dispute relating to conduct that allegedly constitutes sexual harassment under applicable Federal, Tribal, or State sexual harassment laws.'' By embracing sexual harassment jurisprudence, which encompasses a broader array of harassing conduct than is currently included in the text of the bill, the amendment would allow more sexual harassment victims to avoid forced arbitration of their cases based on a pre-dispute arbitration agreement.
Unfortunately, this bipartisan amendment does not address one of the most problematic issues with H.R. 4445--the lack of clarity regarding the coverage of intersectional and related issues that arise in sexual harassment cases. For example, in the workplace, minority women frequently experience sexual harassment concurrent with harassment based on their race or national origin. Additionally, a harassment victim may experience other negative employment actions related to the sexual harassment such as a demotion, unfavorable job transfer, reduction in pay, or other retaliatory conduct. The language in H.R. 4445 fails to specifically state whether there is coverage of these cases, i.e., whether intersectional cases and negative employment action cases related to the sexual harassment would go to court as one case or whether these cases would have to be bifurcated such that the sexual harassment case would go to court, but the intersectional and related case would be forced into arbitration. Given that bifurcation of these cases will only lead to unnecessary expense and an administrative burden for both parties, the best reading of the language in the bill that refers to ``a case . . . [that] relates to a sexual harassment dispute'' is that it was meant to encompass these scenarios. Any other reading of the text regarding these issues would lead to an impractical result, but regrettably the bill, as drafted, does not foreclose that possibility.
The final issue I want to address is the legislation's failure to include a notice requirement directing entities, such as employers, to inform the recipients of their pre-dispute agreements that they have certain protections related to forced arbitration. Typically, employers include language about an arbitration agreement in employment applications, contracts, and/or handbooks that is inconspicuous and difficult for a lay person to understand. For workers to know their rights, employers should be required to provide written, conspicuous notice of the protections in this bill, drafted in plain language the workers can understand, wherever the employer mentions a pre-dispute agreement to arbitrate, and prior to the employer's commencement of arbitration proceedings. Had these simple notice requirements been included in this legislation, it would have helped to ensure that
``sexual assault'' and ``sexual harassment'' victims received the full measure of protections under this bill.
Ms. JACKSON LEE. Madam Speaker, as a senior member of the House and the Committee on Homeland Security, and as Chair of the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, I rise in strong support of H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.
Madam Speaker, H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, is bipartisan and bicameral legislation that empowers survivors of sexual assault and sexual harassment by giving them a choice to go to court instead of being forced into arbitration.
This legislation would amend the Federal Arbitration Act for disputes involving sexual assault and sexual harassment in order to stop employers and businesses from forcing employees and customers out of the court system and into arbitration.
It would ensure that predispute arbitration clauses and waivers of the right to bring joint actions in cases of sexual assault or sexual harassment would not be valid or enforceable for cases that are filed under Federal, Tribal, or State law.
Under current law, many employment and other contracts require binding arbitration for a wide range of matters before a dispute arises, which denies survivors the ability to decide whether to pursue their claim with the procedural protections provided by courts, and silences victims of abuse by forcing them into a confidential dispute forum without the right to appeal.
Madam Speaker, more than 60 million Americans are subject to mandatory arbitration clauses in the workplace, often without realizing it until they come forward to bring a claim against their employer.
The Report of the Co-Chairs of the U.S. Equal Employment Opportunity Commission's Select Task Force on the Study of Harassment in the Workplace notes that between 50-75 percent of women have faced some form of unwanted or unwelcome sexual harassment in the workplace.
Additionally, contracts for services may include mandatory arbitration clauses in the fine print that shield companies and businesses from being held publicly accountable for the harm caused.
I support this necessary legislation because it advances efforts to prevent and address sexual harassment and sexual assault, strengthen rights, protect victims, and promote access to justice.
Madam Speaker, I strongly support this legislation and urge all Members to join me in voting for H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.
The SPEAKER pro tempore. All time for debate on the bill has expired.
Amendment No. 1 Offered by Mr. Buck
The SPEAKER pro tempore. It is now in order to consider amendment No. 1 printed in part B of House Report 117-241.
Mr. BUCK. Madam Speaker, I have an amendment at the desk.
The SPEAKER pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:
Beginning on page 2, strike line 21 and all that follows through line 10 on page 3, and insert the following:
(4) Sexual harassment dispute.--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.
The SPEAKER pro tempore. Pursuant to House Resolution 900, the gentleman from Colorado (Mr. Buck) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Colorado.
Mr. BUCK. Madam Speaker, this amendment is really very simple. It changes a somewhat convoluted definition of sexual harassment to the following: ``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.''
Simple, straightforward, understandable. The issue arose here because there was a question of whether the definition that was contained in this law would supersede Federal, State, or Tribal law; it doesn't. However, this clarifies that, and I would ask my colleagues to support this.
Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I claim the time in opposition to the amendment, although I am not opposed.
The SPEAKER pro tempore. Without objection, the gentleman from New York is recognized for 5 minutes.
There was no objection.
Mr. NADLER. Madam Speaker, I yield myself 45 seconds.
Madam Speaker, I rise in support of the amendment offered by the distinguished gentleman from Colorado (Mr. Buck), the ranking member of the Subcommittee on Antitrust, Commercial, and Administrative Law.
This amendment simply clarifies that H.R. 4445 does not amend current law outside of the Federal Arbitration Act. It reflects the bipartisan input of several of my colleagues in the House and Senate, including the bill's sponsor, Congresswoman Bustos.
Importantly, this amendment would protect the rights of survivors of sexual harassment by ensuring that they have a choice of litigating or arbitrating any case relating to the conduct that is alleged to constitute sexual harassment under applicable law. It does so by making clear that anything related to sexual harassment or assault as currently defined by law is covered by this bill.
This would include retaliation or any other misconduct that gives rise to the underlying claim alleging a violation of these laws and reflects an important compromise struck to protect these cases.
Madam Speaker, I urge my colleagues to support this amendment, and I reserve the balance of my time.
Mr. BUCK. Madam Speaker, I yield 1 minute to the gentleman from North Carolina (Mr. Bishop).
Mr. BISHOP of North Carolina. Madam Speaker, I am pleased with this amendment by the gentleman from Colorado. It has my full support in the Judiciary Committee.
I also appreciate the chairman's non-opposition to the amendment. I believe it makes the bill better, and it makes the bill one that I am going to be eager and pleased to support.
The problem before was that the bill possibly made unenforceable arbitration agreements going well beyond sexual harassment disputes. But for sexual harassment disputes, I am in full agreement that the victim in every case should have the opportunity not to arbitrate, notwithstanding an arbitration agreement.
Therefore, this amendment succeeds. I am going to be glad to support the bill in full, and I am sure many others will as well.
Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the gentlewoman from Illinois (Mrs. Bustos), the sponsor of the bill.
Mrs. BUSTOS. Madam Speaker, I am a proud co-lead of the amendment with Ranking Member Ken Buck of Colorado.
This amendment is the result of good faith negotiations on an issue raised by Republicans on the House Judiciary Committee during debate on my bill, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.
We promised them that we would work to address those issues, and we did. I am glad we could reach an agreement to address their concerns about State and local laws.
This amendment and the underlying bill are a testament to what we can accomplish when we listen to each other and trust that we are working toward a common goal. In this case, that goal is protecting survivors of sexual assault and harassment and giving them a choice on how to pursue justice.
Madam Speaker, I thank Congressman Buck for offering this amendment and working with us to address the concerns of his colleagues. I urge my colleagues on both sides of the aisle to support this amendment.
Mr. BUCK. Madam Speaker, I yield 1 minute to the distinguished gentleman from Virginia (Mr. Griffith), a cosponsor of this bill.
Mr. GRIFFITH. Madam Speaker, I rise in support of the amendment.
As we just heard, this was the majority party taking into account the views of the minority party, which is why we have support on both sides of the aisle for this amendment.
This amendment will bring more Members of the minority party onto the bill. As one of the cosponsors of the bill, I think that is a good thing.
I think this is an appropriate amendment. I think it does clarify.
I commend Mrs. Bustos and Mr. Buck for their hard work on this amendment. I ask that everyone vote for the amendment.
{time} 1800
Mr. NADLER. Madam Speaker, I yield 1 minute to the gentleman from California (Mr. Correa).
Mr. CORREA. Madam Speaker, I rise in strong support of the bill and the amendment.
Sex crimes, including sexual harassment, are some of the most brutal and heinous crimes, causing irreparable damage to their victims. Beyond the physical pain, the psychological trauma usually scars the victim for life. And let us not forget that the vast majority of victims bear this pain silently since these crimes usually go unreported.
I want to thank Mrs. Bustos for the bill and the amendments to prohibit forced arbitration when it comes to sexual assault. But I say to you, Madam Speaker, this is not enough. We must also address secret settlements and nondisclosure agreements. These agreements allow sexual predators to continue to victimize other victims for a long, long time.
To remedy this loophole, I will be introducing legislation to prohibit secret settlements when it comes to sexual crimes.
Mr. BUCK. Madam Speaker, I am prepared to close, and I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 1\1/2\ minutes to the distinguished gentlewoman from California (Ms. Speier).
Ms. SPEIER. Madam Speaker, I thank the chairman for the opportunity.
This is nothing short of profound; the impact it is going to have on 60 million Americans who don't even know that they have agreed to forced arbitration and the fact that in 98 percent of the cases of sexual assault and sexual harassment in the workplace, the employer wins.
We had a hearing last week in which the NFL staffers at the Washington Commanders talked about the sexual harassment and sexual assault that they endured. One of them said in the year and a half that she worked there, she was sexually harassed every single day.
Let me speak about Loretta Lee of California who was fired from Google after complaining about male coworkers making lewd remarks, sending her disturbing messages, hiding under her desk, and showing up at her apartment. In addition to losing her right to file suit, she was also forced to meet with her perpetrators, resulting in retaliation.
Representative Bustos has done a great service to men and women who are sexually harassed and sexually assaulted in the workplace. I commend her, and I applaud her.
Madam Speaker, I urge all my colleagues to vote for this amendment and for the legislation.
Mr. BUCK. Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, in closing, I thank Mr. Buck for offering this helpful amendment.
I thank Ms. Speier, and I thank all the people who have been so helpful on this bill.
Madam Speaker, I yield back the balance of my time.
Mr. BUCK. Madam Speaker, I thank the gentleman for his leadership, and I appreciate Mrs. Bustos and her willingness to consider this language. I don't know that there was a problem beforehand, but whatever there was, it has been cleared up, and I very much think that this is a stronger bill as a result of this amendment.
Madam Speaker, I urge my colleagues to vote for it, and I yield back the balance of my time.
The SPEAKER pro tempore. Pursuant to the rule, the previous question is ordered on the bill and on the amendment offered by the gentleman from Colorado (Mr. Buck).
The question is on the amendment offered by the gentleman from Colorado (Mr. Buck).
The question was taken; and the Speaker pro tempore announced that the ayes appeared to have it.
Mr. JORDAN. Madam Speaker, on that I demand the yeas and nays.
The SPEAKER pro tempore. Pursuant to section 3(s) of House Resolution 8, the yeas and nays are ordered.
Pursuant to clause 8 of rule XX, further proceedings on this question are postponed.
Pursuant to clause 1(c) of rule XIX, further consideration of H.R. 4445 is postponed.
____________________
SOURCE: Congressional Record Vol. 168, No. 24
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