When is the last time you recall Congress agreeing on anything? Well, it happened last week, when the Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (full text here.)
Simply, once signed by President Biden (which should happen imminently), any agreement that requires an employee to submit a sexual harassment claim to private arbitration, or waive their right to participate in a class or collective action, would be invalid and unenforceable.
It had previously passed the House by a margin of 335 – 97, and passed the Senate with a voice vote."It will help us fix a broken system that protects predators and corporations and will help to end the days of silencing survivors," Sen. Kirsten Gillibrand, a New York Democrat and co-sponsor of the legislation, told CNN. Added co-sponsor Sen. Lindsey Graham, a South Carolina Republican, "The arbitration system is fairly skewed toward the company, and to take a job I don't think you should be required to give up your day in court if you claim something untoward happened to you."
If Kirsten Gillibrand and Lindsey Graham are on the same page, then this must be worthwhile legislation. Indeed, if we want to end workplace sexual harassment, we have to stop permitting its perpetrators from hiding behind veils of anonymity in private arbitration hearings.
Employers, do your employees sign arbitration agreements or class/collective action waivers that cover workplace sexual harassment claims. If so, get ready for them to be worthless (at least as to that species of claim) once President Biden signs this bill into law.