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Two United States bills that are both against workplace sexual assault cases going into arbitration by force are being put up against each other in the Senate’s Judiciary Committee, which has jurisdiction over arbitration law. However, the two cover distinctly different breadths of these problems, namely those regarding sexual harassment in the workplace. Though the Chamber is not necessarily in opposition to one of these, it is in greater support of the more narrow of the two.
On November 4th, the Senate Judiciary Committee approved a bill called the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, and it passed with unanimous support by voice vote. The bill was introduced by New York Democrat Kirsten Gillibrand and South Carolina Republican Lindsey Graham, and the Gillibrand-Graham bill has received bipartisan support.
Although the Gillibrand-Graham bill is not as broad as some would like, it would still allow survivors of workplace sexual misconduct the right to take claims to civil court. It’s also a sign of legitimate progress in Congress, and it follows the trend of removing cases from arbitration. According to Prospect, removing cases from arbitration is quite popular.
However, the night before the Gillibrand-Graham bill was passed, another one was also presented by Iowa Republican Senator Joni Ernst, who is not a member of the Judiciary Committee. This would prohibit arbitration to be forced upon sexual assault cases, but only give what is described as “window dressing” rights to workplace sexual harassment survivors. This would make it harder for those subject to sexual harassment to get justice, even though the rulings are rarely on the victim’s side of these cases anyway.
One aide states, “It stands for the proposition: Harass employees all you want, just don’t assault them, which is a gross claim.” And Neil Bradley of the United States Chamber claims that support toward the Ernst bill is a high priority, and that the Chamber would be watching to see who supports it, according to a letter from the US Chamber. Regardless, the existence of the Ernst bill didn’t take away bipartisan support for the Gillibrand-Graham bill. Though there are allegations that the Chamber of Commerce has been trying to vie for the narrower bill in order to pull away support from the broader.
Today, there’s a hearing in regards to enforced arbitration, featuring victims who’ve been assaulted by company CEOs. Tomorrow, there will be a markup of the bill, as well as the offer of another narrow substitute introduced by Lesko and Bass. A source lobbying for the broader bill claims that the House Republicans are trying to create some “cover” during the hearing and the markup.
In an attempt to make the issue more black and white, Prospect Carlson has stated, “I ask this question to anyone misinformed about this: ‘Raise your hand if you favor women and men being sexually harassed in the workplace and being silenced.’ No hands go up.” Additionally, he describes it as “a horrifying Washington-knows-best, corporations-know-best philosophy.”
There are also quotes from Graham, one of the bill introducers, himself. According to Forbes, Graham claims that “when it comes to sexual assault and sexual harassment, that you cannot sign your rights away just by working somewhere or receiving a service.” Prospect Carlson rang in agreement to this sentiment, stating “This is an historic opportunity to end silencing mechanisms that prevent survivors from speaking out, and it will allow survivors the ability to speak openly and protect others in [the] workplace across the country.”
As a note, the bill does include an exception for arbitration clauses in union contracts.