Trial Magazine

In July, congressional members from both sides of the aisle stood side by side with journalist and sexual harassment survivor Gretchen Carlson at a press conference to announce the introduction of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. And despite seemingly increased partisanship in Congress, the message was stronger than ever before: We’re going to pass this bill and end forced arbitration for survivors of sexual assault and harassment once and for all.

Introduced by Sen. Lindsey Graham (R-S.C.) and Sen. Kirsten Gillibrand (D-N.Y.) in the Senate (S. 2342) and by Rep. Cheri Bustos (D-Ill.) and Rep. Morgan Griffith (R-Va.) in the House (H.R. 4445), the bill would prevent survivors of sexual assault or sexual harassment from being forced into arbitration. This bill’s greatest asset is its simplicity—it allows survivors of sexual misconduct to make a knowing and voluntary choice between arbitration or filing their case in court.

Sexual harassment and sexual assault have been too prevalent for far too long. Thanks to the tireless work of survivors, advocates, and organizations, some corporations are now publicly expressing a willingness to engage in conversations about why sexual misconduct is so common and identify the most effective ways to end it. And while corporations’ public support of survivors is fundamentally important, that support is meaningless if there is no accountability.

Forced arbitration is the silent way corporations can say all the right things publicly while still not being held accountable for allowing perpetrators to lie, harass, and abuse. And it allows systemic, institutionalized harassment and assault to continue because it prohibits most survivors from ever achieving justice or public accountability—making it more likely that those acts will occur in the future.

We know that a survivor shining a light on misconduct and abuse by filing a public court case is hugely important in preventing them from happening again. At the press conference, Sen. Graham aptly stated, “You’ll never get society where it needs to be until you have a system that’s more transparent.” Forcing sexual assault and harassment cases into a secretive process essentially sweeps misconduct under the rug, letting it fester and continue without public accountability.

Research shows that women and minorities are more likely to work in fields that are subject to forced arbitration clauses. Worse, in the rare instances when women and minorities try to pursue their cases in arbitration, they are denied the opportunity to have their cases heard by a jury of their peers. Instead they face an overwhelmingly male and white pool of arbitrators—AAJ’s research shows that arbitrators from the two largest arbitration providers in the U.S. are 88% white and 77% male. (For more, visit www.justice.org/ForcedArbitrationLacksDiversity.)

Even when female arbitrators are available, the corporation always gets to pick the forced arbitration provider and often gets to pick the specific arbitrator. And corporations may favor male arbitrators, with data showing that female arbitrators tend to award higher damages than their male counterparts.

A similar bill was first introduced in 2017—but just a few years later and with the increased momentum behind the #MeToo movement, we’ve seen a noticeable shift in public awareness. And since forced arbitration has come to the forefront, more and more corporations have announced they will no longer be forcing survivors of sexual assault and harassment into arbitration—including Airbnb, Google, Lyft, Microsoft, and Uber.

While more companies may follow suit, the surest way to bring about meaningful, consistent, and lasting change and restore people’s right to access the courts is by passing legislation to end this abusive practice. AAJ will continue to work with hundreds of labor, civil rights, and consumer organizations to fight for legislation that protects survivors of sexual assault and harassment from forced arbitration and restores every American’s Seventh Amendment right to a jury trial.

Charlotte McBirney is AAJ’s senior federal relations counsel and can be reached at charlotte.mcbirney@justice.org. To contact Public Affairs, email advocacy@justice.org.