H.R. 4445

Floor Speech

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Mrs. GILLIBRAND. Mr. President, I just want to thank my colleagues Senator Graham and Senator Ernst for their outstanding work in this regard.

We have worked over many years to get a bill that can be agreed upon. Senator Ernst made sure that her concerns were met in several ways. But I agree with both of their statements. I do not believe that survivors of sexual assault and harassment will abuse the ability to file cases in court.

The bill plainly reads, which is very relevant to Senator Ernst's concerns, that only disputes that relate to sexual assault or harassment conduct can escape the forced arbitration clauses. ``That relate to'' is in the text. The language of the bill specifically states that ``the term `sexual harassment dispute' means a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law,'' and ``the term `sexual assault dispute' means a dispute involving a nonconsensual sexual act or sexual conduct.''

To be clear, there are no new legal burdens to sexual harassment established in the bill. This was another concern that Senator Ernst had. It is all tied to existing Federal, State, and Tribal law.

This bill will basically give survivors the ability to go to court where they are ``alleging conduct constituting a sexual harassment dispute or a sexual assault dispute.'' When a sexual assault or sexual harassment survivor files a court case in order to seek accountability, her single case may include multiple claims. But as Senator Ernst said, if those claims on harassment or assault are dismissed, then she would go back to the arbitration process.

But it is--and this is important to Senator Graham and I--it is essential that all the claims related to the sexual assault or harassment can be adjudicated at one time for the specific purpose that Senator Ernst is well aware of. We don't want to have to make a sexual assault or harassment victim relive that experience in multiple jurisdictions. So we want to be able to deal with all the harassment- and assault-related claims in one goal. But, again, if those aren't part of it, then this bill does not apply to it.

So you are quite right in your clarification, and that is exactly what we intended the bill to do.

Every State and Federal court in the country requires a person to allege certain things in a certain way in order to properly plead a case such that it won't be immediately dismissed. Victims here must follow the rules and plead a case correctly, and then they must also affirm to the Court that they have a good-faith basis for doing so. Attorneys must do the same thing.

If victims and attorneys break those rules, they can be sanctioned in court, as Senator Graham mentioned. To ensure that a victim is able to realize the rights and protections intended to be restored to her by this legislation, all of the related claims will proceed together.

I yield back to my colleagues.

Can I just read my full statement now?

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Mrs. GILLIBRAND. Do you have more to say, Senator Ernst?

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Mrs. GILLIBRAND. Mr. President, I just want to, for the record, talk about this legislation and how important it is.

I am extremely grateful for the work of Senator Graham over the last 5 years in writing this bill. And I am very grateful to the majority leader for meeting with Senator Ernst and Senator Graham yesterday to make the final decisions on this bill and to close the deal.

Senator Schumer is one of the greatest listeners and has the ability to bring legislation to fruition, and that is exactly what he did yesterday. And I am very grateful.

This bill represents one of the most significant workplace reforms in American history. It will help us fix a broken system that protects perpetrators and corporations and end the days of silencing survivors.

Too often, when survivors of sexual assault or harassment in the workplace come forward, they are told they are legally forbidden to sue their employer because somewhere buried in their employment contract was a forced arbitration clause, often accompanied by a nondisclosure agreement.

Instead of being allowed their day in court, these survivors are pushed into a system designed by the same corporation that they are challenging. They are blocked from seeking information that could prove their case, and they are left in the hands of an extrajudicial arbitrator who is typically selected by their employer and is not always a trained lawyer.

The arbitration process not only allows the corporations to hide sexual harassment and assault cases in this secretive and often biased process, but it shields those who have committed serious misconduct from the public eye. Across the board, employees are less likely to win an arbitration than they are in court. Even when they do win, they typically receive much lower monetary awards. And because the results of arbitration are secret and binding, there is no chance for an appeal, and repeat offenders are often not held to account.

Estimates suggest that more than 60 million Americans are subject to arbitration clauses. Many don't even know it because the clauses are hidden in the fine print. Forced arbitration clauses are especially common in female-dominated industries.

The ACLU has reported that 57.6 percent of female workers are subject to this practice. It is also especially prevalent in low-wage fields and industries with disproportionately high numbers of women of color. These clauses leave those women who often cannot afford to challenge their employers without recourse. But this affects women in every industry.

A 2018 analysis of sexual harassment claims made on Wall Street found that in 30 years, just 17 women--30 years, just 17 women--won their claims before Wall Street's oversight body, and most cases were dismissed or denied.

I want to share the stories of two survivors to illustrate how broken the system is.

First is Lora Henry, who worked at a Kia dealership in Ohio where her boss sexually harassed her, touching her inappropriately, making inappropriate comments, bringing her inappropriate gifts. When she reported him, the company did a sham investigation and forced her into arbitration. She was only able to share her story because Congress issued her a subpoena. She should not have needed the protection of a congressional subpoena to speak out. She testified, ``The cycle of harassment will continue if you force women to be quiet and allow sexual harassers and the companies that allow them to hide behind arbitration agreements.''

The second story is about Andowah Newton, who was working for the vice president of legal affairs at the luxury goods company LVMH Moet Hennessy Louis Vuitton, Inc., in New York, when she reported being sexually harassed and assaulted by a colleague. Even though she filed her sexual harassment case in a New York State court, the company moved to compel forced arbitration on the grounds that Federal law supersedes New York State law that attempts to protect victims of harassment from being forced into arbitration. She said:

Because of forced arbitration and [confidentiality agreements], I may never know the extent to which [this perpetrator] sexually assaulted or harassed others, [and] if LVMH retaliated against others as they did me. . . . His sexual harassment, attempted assault, and assault made me feel scared, demeaned, and ashamed. I found myself constantly agitated, distressed, and hypervigilant, preoccupied with avoiding the trauma of encountering him.

Even with her legal expertise and experience as vice president of legal affairs, she was powerless in this system. She said the company convinced her ``that . . . harassment was just a byproduct of being an attractive woman who works at a company with a French culture.'' That is the same company running the arbitration process. That is why this bill fixes the problem.

Survivors deserve a real chance at justice, and that is what this bill does.

This bipartisan, bicameral bill would amend the Federal Arbitration Act to void all forced arbitration provisions for sexual assault and harassment survivors. Removing those provisions would give survivors their day in court, allow them to discuss their case publicly, and end the days of institutional protection of harassers.

This legislation passed with bipartisan, broad support in the House, and I hope my colleagues will join us in supporting this critical workplace reform in the Senate.

Again, I thank Senator Schumer and Senator Graham.

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