Victims' advocates praise end to forced arbitration in workplace sexual harassment cases

TAMPA, Fla. - Democrats and Republicans in Congress passed a bill Thursday that ends forced arbitration of sexual harassment and assault claims in the workplace, a major milestone for the Me Too movement.

Arbitration often protects employers and keeps misconduct private, but the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act gives victims the choice to sue in court. Now, the bill is headed to President Joe Biden’s desk for his signature.

"While some companies have done away with this practice, thank you to them, it’s time to do away with these legal traps for good," said Rep. Cheri Bustos (D-Illinois) during the House session on Feb. 7.

After passing the House on Monday, the U.S. Senate approved the bill Thursday. Lawmakers said arbitration often benefits the employer and hides misconduct. 

Kathleen Kempke with the Crisis Center of Tampa Bay said the bill helps give power back to victims.  

"They're silenced. In many ways, they're silenced, and the taboo of sexual assault silences as a victim. This gives them an opportunity to have a voice," said Kempke, the senior director of Corporate Trauma Center at the Crisis Center of Tampa Bay.

During the Me Too movement, former Fox News anchor Gretchen Carlson brought the issue to light when she accused then-CEO Roger Ailes.

"I think it's a very good idea that the employee now gets to decide where he or she wants to be concerning their claims," said Claire Saady, an attorney and partner at Saady and Saxe Law firm in Tampa.

Saady works on sexual harassment cases, and she said not all workers want their claims to be public. She also explained other differences to keep in mind.

"If I as the employee win in arbitration, there's no appeal. So whatever the arbitrator finds, if I'm entitled to win damages, there's no appeal," said Saady. "In litigation, if I, as representing the employee, win in litigation in court, the employer could drag that on and appeal."

Attorneys handle the claims case by case with their clients. So while the bill is a step forward, some attorneys like Saady said it also leaves a gap for arbitration cases for race, disability, nationality and age.

"I think they just missed the mark by not including all types of discrimination," said Saady.

The bill is retroactive and would invalidate arbitration in contracts across the country. Opponents argue that arbitration is quicker and cheaper. Lawmakers said some 60 million American workers have forced arbitration in their contracts.