Finally, some good news came from Congress. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act passed in the Senate on Thursday and heads to President Joe Biden to be signed. The bill prevents employers from forcing their workers to bring sexual harassment or assault cases before secretive arbitrators paid by the boss, instead of before judges in open court.
With bipartisan support, its passage provides a welcome example of progress despite our deep divides. It had bipartisan sponsorship from the start: A version of the bill was originally proposed back in 2017 by two of its current sponsors, Sens. Kirsten Gillibrand, D-N.Y., and Lindsey Graham, R-S.C.
Since the bill's initial introduction in 2017, there have been a powerful reckoning and an airing of truths about sexual harassment and assault at work.
In the years since the bill's 2017 debut, the country has learned about how widespread workplace sexual harassment and assault are. The sordid phenomenon occurs in places as disparate as seemingly glamorous jobs in Hollywood and the halls of governmental power and in grittier underpaid jobs in fast-paced fast food joints and agricultural picking fields.
But it's also become even more clear, especially since the onset of the coronavirus pandemic, how vulnerable workers are to all kinds of mistreatment, from dangerous working conditions to wage theft to race discrimination. The passage of this bill is a tremendous victory for workers and for justice; at the same time, it's not the end of the battle. Thursday's genuine advance should be the first step toward ending forced arbitration for all kinds of workplace disputes.
Since the bill's initial introduction in 2017, there have been a powerful reckoning and an airing of truths about sexual harassment and assault at work. Harvey Weinstein was convicted. Andrew Cuomo resigned as governor of New York after multiple sexual harassment allegations were made against him that district attorneys described as "credible" and "deeply troubling" but not meeting requirements for criminal prosecution. (Cuomo denies any wrongdoing.)
McDonald's workers, with help from the ACLU Women's Rights Project, sued the company alleging a culture of sexual harassment; they also went on strike to protest the company's approach to these problems. A report by the National Academies of Science, Engineering, and Medicine found that sexual harassment was widespread in the academic sciences; surveys among restaurant and fast food workers, as well as the general public, have found the same. Major tech companies experienced walkouts and protests. Ultimately some of them ended forced arbitration not just for sexual harassment claims but for all workplace claims. A 2018 New York Times retrospective included 201 powerful men brought down by #MeToo. The list would be even longer by now. Countless women have experienced grotesque violations at work — having their breasts and buttocks grabbed or facing retaliation or termination after refusing the sexual advances of a boss, as Gretchen Carlson alleged.
The disparity of power between workers and employers has led to all kinds of other violations.
But these violations aren't all that's come to light of late. The disparity of power between workers and employers has led to all kinds of other violations. Wage theft is rampant: A recent Economic Policy Institute report found that $3 billion in stolen wages was recovered for workers from 2017 to 2020 – and this is likely only a fraction of the money actually owed to workers, given workers' fear of retaliation, the difficulty of finding lawyers and other barriers to filing complaints.
These violations have profound impacts on people's lives. For example, in one case we handled in my prior job at the New York Attorney General's office, a home health aide who hadn't been paid for around two months of work was evicted because she couldn't pay her rent. Wage theft is also a public health problem: Some experts have noted that the resulting income insecurity makes it hard for people to pay rent or heating bills, buy food or get access to transportation, which can ultimately adversely affect health.
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Too many workers also face racial discrimination on the job. High-profile examples abound: In October, a jury ordered Tesla to pay a Black former contractor $137 million based on race discrimination allegations, and just Wednesday, California's civil rights agency sued Tesla in state court after it said it received hundreds of worker complaints about racial slurs and epithets, discrimination and a hostile work environment. Former Miami Dolphins coach Brian Flores filed a federal lawsuit against the NFL this month, alleging discrimination in hiring practices by teams throughout the league. But there are also countless lower-profile discrimination cases that never hit the headlines.
Are wage theft and race discrimination as bad as sexual harassment and assault? The question makes no sense. Oppression olympics aren't a helpful exercise, and the bottom line is that these workplace abuses are all pretty reprehensible.
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However, a tremendous number of workplace cases of all kinds never come to light, because more than half of U.S. workers are subject to forced arbitration, according to a 2019 Economic Policy Institute report. As a condition of employment, they're required to give up their rights to bring cases before judges and instead agree to a secretive process before arbitrators paid by their employers. Forced arbitration is terrible for workers; as Sen. Graham stated in 2017, "Mandatory arbitration employment contracts put the employee at a severe disadvantage." Typically, such workers are required to give up their right to bring class actions, too; if they file before arbitrators, they have to go it alone. The Supreme Court, in dire need of reform itself, has blessed all of this, with tortured interpretations that favor forced arbitration over basic fairness.
Research shows that workers lose more often in forced arbitration and win less money than in court when they do win. And forced arbitration's secretive nature prevents workers from finding out there are ongoing problems in their workplaces. A worker experiencing sexual harassment, wage theft or race discrimination wouldn't know about other cases because past arbitrations aren't public record, unlike court proceedings.
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And it's nearly impossible for such workers to find lawyers; attorneys generally can't afford to bring one-off arbitration cases because the damages are too small to cover their litigation costs and time. One New York University scholar described the "black hole of mandatory arbitration" and estimated that over 98 percent of the employment claims that otherwise would likely be brought are never filed in arbitration.
But forced arbitration doesn't just harm companies' current employees. It also affects job seekers, who lack information about the true nature of their potential employers. It hurts employers that don't force their workers into arbitration: They may well offer better work environments, but they lose what should be a competitive advantage when rivals hide wrongdoing from view. And forced arbitration's lack of transparency harms shareholders, who make decisions based on incomplete information about companies' real potential liability.
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I worked in state government for many years; I understand that change is often incremental, and making imperfect progress is sometimes better than being ideologically pure while standing still. Sometimes a partial victory can get a foot in the door. Somehow Republicans grasped the problem with forced arbitration in relation to sexual harassment specifically.
Was it because of the #MeToo awakening? The fact that the most visible advocate on the issue — Gretchen Carlson — was relatable to them? Was it a sense of chivalry about protecting wives, sisters and daughters? For whatever reason, it allowed for real progress. And now we have something genuine to celebrate that will make a difference in thousands of working people's lives.
At the same time, it's just a first step. Today, forced arbitration is coming to an end for victims of sexual harassment and assault. Our challenge for tomorrow: ensuring that all workers whose rights are violated have meaningful access to justice.