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Senate Passes Landmark #MeToo Bill to Ease Workplace Suits (1)

Feb. 10, 2022, 4:17 PMUpdated: Feb. 10, 2022, 4:50 PM

The U.S. Senate delivered a major legislative victory for the #MeToo movement, clearing a House-passed bill to guarantee that victims of workplace sexual harassment or assault are free to pursue lawsuits in court.

The Senate passed H.R. 4445 on a voice vote Thursday, sending to President Joe Biden a bill that will transform how businesses resolve allegations of workplace sexual harassment and assault, and how such issues are addressed in employment contracts.

Biden supports the legislation, which the White House previously said “advances efforts to prevent and address sexual harassment and sexual assault, strengthen rights, protect victims, and promote access to justice.”

The measure, which the House passed Feb. 7, would prohibit enforcement of contract provisions that mandate third-party arbitration of workplace sexual harassment or assault claims. Arbitration is an out-of-court process that is legally binding and takes place behind closed doors.

The #MeToo movement exposed how mandatory arbitration agreements, often signed as part of employment contracts, can favor employers over workers and keep allegations out of the public eye, shielding repeat violators of the law. Senate Majority Leader Chuck Schumer called the action “one of the most significant changes to employment law in years” on the Senate floor on Thursday.

The public pressure to give victims the freedom to pursue civil lawsuits despite prior arbitration agreements has been building in recent years, and helped produce a partisan shift that made Senate passage possible.

Workers’ rights groups and high-profile advocates, such as former Fox News broadcast journalist Gretchen Carlson, convinced members of Congress on both sides of the aisle to support their cause, leading to the rare passage of legislation to change federal employment law.

Read More: BGOV Bill Summary: H.R. 4445, Sexual Assault Arbitration Ban

Sen. Lindsey Graham (R-S.C.), at left, joins (from left to right) Sen. Kirsten Gillibrand (D-N.Y.), Rep. Cheri Bustos (D-Ill.) and former Fox News broadcast journalist Gretchen Carlson in July 2021 to announce the legislation.
Photographer: Drew Angerer/Getty Images

Sen. Kirsten Gillibrand (D-N.Y.) introduced the Senate version in July alongside Sen. Lindsey Graham (R-S.C.). The House bill was introduced by Rep. Cheri Bustos (D-Ill.) and Rep. Morgan Griffith (R-Va.).

“The bill would apply to any new claims, regardless of when the bad behavior occurred and barring any state or local law that might limit when a claim is brought,” according to a spokesperson for Bustos.

The bill would amend the Federal Arbitration Act to ban agreements requiring arbitration that were signed prior to an incident of workplace sexual harassment or assault. But there’s a key distinction that helped win GOP backing—arbitration will still be allowed if the worker chooses that course after an incident.

(Updates with comments from Schumer and Bustos's office in the fifth and ninth paragraphs.)

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Heather Rothman at hrothman@bgov.com