The bill would make significant changes to arbitration for victims of sexual assault and sexual harassment in the workplace, which proponents of the Ending Forced Arbitration Act say has historically been weighted in the favor of employers.
It has been called the “#MeToo” bill due to its origin as a response to the “#MeToo” phenomenon, which spread rapidly online as sexual assault and harassment victims—particularly in Hollywood—disclosed details about the sexual abuses they had suffered at the hands of the ultra-rich and powerful, like Harvey Weinstein.
The legislation is uncharacteristically concise for the 117th Congress, coming in at around one or two pages. Its scope is extremely narrow, touching only on reforming the sexual abuse response of employers in an effort that proponents hope will weigh the law more in favor of victims.
Under current law, employers are able to force employees who experienced a sexual assault or harassment into an arbitration agreement, wherein a neutral third-party attempts to settle disputes between two conflicting parties outside of court.
Often, employment contracts mandate this arbitration, which is usually secretive and kept out of the public eye, allowing allegations to remain unknown to the public. These contracts can go a step further and mandate that victims reach an out-of-court, legally-binding agreement that essentially precludes them from pursuing further legal action against their attackers.
Under the Ending Forced Arbitration Act, these and similar provisions of employee-employer contracts will be considered null and void, allowing victims to bring their claims directly to the legal system and ending the requirement that they reach an agreement with their employer in third-party arbitration.
However, the law will still preserve the option to settle out of court if desired by the victim.
The Ending Forced Arbitration Act was passed by the House in a 335–97 vote on Feb. 7, with the majority of the chamber’s GOP members signing on to the bill.
In the Senate on Thursday, members from both parties made passionate arguments in favor of the bill on the Senate floor. Following this short round of speeches, the bill was passed by a voice vote.
The effort was led on the GOP side by Sen. Lindsey Graham (R-S.C.).
Discussing the bill, Graham said that it was important to himself and other supporters of the bill that victims of sexual harassment and sexual assault not “be forced into arbitration that’s skewed for the employer against the employee—for these things to be hidden.”
Graham also emphasized that the bill would not nullify third-party arbitration provisions in employment contracts for issues like assault or general harassment that are not sexual in nature.
To ensure this, the bill includes a very concise and narrow definition of what constitutes sexual assault and sexual harassment.
It describes a “sexual assault dispute” as “a dispute involving a nonconsensual sexual act or sexual contact, as such terms are defined [under federal, state, or local law].” Likewise, it describes a “sexual harassment dispute” as a dispute involving the federal, state, or local definition of sexual harassment, leaving a significant degree of latitude to state and local governments.
The bill, said Sen. Joni Ernst (R-Iowa), “provides survivors of sexual assault and sexual harassment with a choice between litigation and [out-of-court] arbitration so their voices will not be silenced.”
At the same time, Ernst noted that she and other supporters of the bill had been careful to avoid too broad an interpretation of the law, and she emphasized, like Graham, that it will not end all third-party arbitration.
The stirrings of the movement were clear long before, however, in whispered allegations among those who had experienced sexual assault by well-connected elites.
Fox News’ Gretchen Carlson, an anchor and former Miss America, has made headlines since 2016 over allegations against former Fox CEO Roger Ailes. Carlson claims that she was sexually assaulted by Ailes; while he has denied the charge, Ailes left Fox News in 2016 just 15 days after Carlson’s allegations came to light.
Biden has himself been alleged of sexual assault by several women, with claims mostly originating from Biden’s time as a U.S. Senator.
Still, Biden has signaled that he supports the legislation, and with the Senate’s passage of the bill it is set to become law upon receiving Biden’s signature.
