Silenced no more

On March 3, President Joe Biden signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.”

The groundbreaking measure will improve accountability for survivors of sexual assault and harassment. It outlaws forced arbitration clauses in employment contracts with regard to sexual assault and sexual harassment in the workplace. The law was passed by overwhelmingly bipartisan votes in the House and Senate.

For far too long, countless survivors, workers, and consumers have been silenced by forced arbitration. The new law will restore survivors’ rights to hold their perpetrators and the corporations who enable them accountable in court, before a jury of their peers, instead of being forced into arbitration.

The bill states:

“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.”

The courage of the survivors and advocates who came forward at great personal risk to tell their stories to Congress was critical to the success of the legislation. Witnesses shared personal stories of how their sexual harassment and assault lawsuits were forced from courtrooms to private arbitration. There were also stories of workplace culture in which allegations were ignored and non-disclosure agreements (NDAs) allowed perpetrators to continue abusive behavior against future victims.

Forced arbitration clauses restrict Americans’ access to justice by stripping workers’ right to go to court, and shuttling them into private arbitration, where the law and the rules applied are often chosen by the company. These proceedings are conducted in secret, without public rulings, and with no judicial review.

As a past president of the American Association for Justice (AAJ), I am immensely proud of the organization’s role in getting the bill passed and signed by President Biden.

The new law is a major step forward in restoring the rights of all Americans who seek justice. Forced arbitration clauses are ubiquitous; buried in the fine print of legal contracts such as worker and consumer contracts. In addition to employment contracts, corporations place them in contracts for nursing homes, bank accounts, credit cards, prepaid cards, student loans, payday loans, rental cars, cable services, cell phones, insurance policies and medical care. Many of these forced arbitration clauses particularly affect low-income and disadvantaged people.

A clause banning class actions frequently accompanies the forced arbitration clause. This new law includes a ban against any waivers of the right to bring sexual assault and harassment claims jointly and/or on a class action basis.

The legislation carves out cases involving sexual misconduct from the Federal Arbitration Act (FAA), enacted in 1925. Before this law, only certain transportation workers were exempted from the FAA’s coverage. Now, there is one more category of cases exempted – those related to sexual harassment and assault.

Approximately sixty million contracts in this country will be affected by this legislation.

The signing of this bill signals a new era and brings us closer to making workplaces safer and holding the wrongdoers accountable in environments where sexual assault and harassment were kept secret. Survivors will no longer be forced into a rigged system that operates in secret and members of Congress and President Biden should be commended for acting.

Forced arbitration should end for all workers, consumers, patients and survivors. It strips Americans of their fundamental rights to seek justice and accountability under the Seventh Amendment of the Constitution – the right to trial by jury.