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Sexual Misconduct Bill Nears Filibuster-Proof Support in Senate

Jan. 13, 2022, 3:09 PM

Legislation inspired by the #MeToo movement that would remove a legal hurdle blocking many employees from suing over workplace sexual misconduct is emerging as the employment bill with the best chance of becoming law ahead of the mid-term elections.

The U.S. Senate measure, known as the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (S. 2342), has already advanced out of committee and now has backing from 10 Republican senators. That means it could clear the 60-vote threshold required to advance legislation in the chamber, a hurdle that has doomed several House-passed workplace bills in recent years.

The bill, which Sen. Kirsten Gillibrand (D-N.Y.) introduced with bipartisan sponsorship last summer, has attracted support from senators in both parties because it responds to one of the legal issues highlighted by the #MeToo spotlight.

Many employment contracts include binding arbitration clauses that prevent workers from suing an employer over allegations of workplace sexual misconduct, forcing them instead to seek redress through an out-of-court dispute resolution process. The bill would bar enforcement of mandatory arbitration clauses in cases where employees are alleging they were sexually harassed or assaulted at work.

Sen. Thom Tillis (R-N.C.) late last month became the tenth Republican senator to co-sponsor the legislation, according to advocates and the Library of Congress, joining early GOP co-sponsors Lindsey Graham (R-S.C.) and Senate Judiciary Committee ranking member Chuck Grassley (R-Iowa).

Senate Judiciary advanced the bill in November, and the House Judiciary Committee did the same for companion legislation later that same month.

Neither measure has been scheduled for a floor vote, but a spokesperson for Senate Majority Leader Chuck Schumer (D-N.Y.) said “Senate Democrats are ready to pass the bill.”

‘Rare These Days’

The legislative push has received backing from several advocacy groups, along with advocate and former Fox News anchor Gretchen Carlson, who sued then-CEO Roger Ailes alleging harassment. She has said that binding arbitration agreements harm victims of sexual harassment and assault by creating an “uneven” relationship between employer and employee.

While a number of big-name companies have abandoned forced-arbitration language in employment contracts, employers generally assert that the arbitration process is more efficient and less costly than litigation to resolve allegations. Critics contend that such agreements discourage workers from coming forward to allege sexual harassment or assault.

Arbitration proceedings, which are legally binding, are decided by a third-party and mostly take place behind closed doors, depriving the employee of the public accounting that open court provides.

But the #MeToo era has helped shift the politics on this issue in the Senate, where the Republican conference, aided by the filibuster, has traditionally been loath to support House-passed labor and employment bills that they believe would hurt employers.

“Seeing this level of bipartisan support for a bill is rare these days,” Peter Knudsen, director of communications for the American Association for Justice, said in an emailed statement. “Survivors of sexual harassment and assault deserve the choice on how to seek accountability, and the fact that there has been no organized opposition to this principle gives us hope that the bill will continue to gain momentum and move forward.”

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; Andrew Harris at aharris@bloomberglaw.com

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