The Senate Judiciary Committee will vote on legislation Thursday that purportedly delivers justice to Americans who have been victims of sexual harassment and assault in their workplaces.
Everyone agrees that workplace sexual assault and harassment is abhorrent and should be swiftly dealt with. But the legislation under consideration in the Senate is a gross miscarriage of justice.
This legislation would eliminate workers’ ability to seek compensation for a whole range of workplace abuses—not just sexual harassment and assault. Through pre-dispute arbitration, one of the quickest, cheapest, and most worker-friendly legal recourses available, workers would not be able to seek compensation for numerous other types of disputes, like wage and hour claims.
Misleadingly titled the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, the bill is essentially a Trojan horse for the trial lawyer lobby.
A bill that only deals with sexual assault and harassment claims would be a noble and worthy effort. However, the legislation goes much further than that. It would force all workplace disputes to flow through the courts—a process that often takes years, is vastly more expensive for aggrieved employees, and is less likely to result in a favorable settlement—instead of going to neutral third-party arbitrators.
The text of the legislation invalidates any contractual requirement to engage in arbitration if an employee’s complaint is “related to a sexual assault dispute or sexual harassment dispute” in any way.
At first glance, this appears to target workplace sexual assault and harassment.
In practice, however, the intentionally broad language means that any employee claim that so much as mentions sexual impropriety—even as a tertiary concern among several other disputes they may have with their employer—will automatically be forced into our overcrowded and frequently victim-unfriendly court system.
A perfectly routine disagreement over payroll or a work-related injury could be tainted by association if it mentions sexual misconduct of any kind toward any person—not just the petitioner. This language is so all-encompassing, it would give lawyers an opportunity to tack on any sexual-related complaint—substantiated or otherwise—and thus disqualify a dispute from arbitration and force it into the court system.
And it doesn’t stop there. The bill hypocritically recognizes the benefits of arbitration. It expressly carves out organized labor, allowing it to use arbitration to resolve disputes between unions and companies.
But it effectively prohibits individual union members from using arbitration to resolve virtually any dispute they may have with their employers.
If this sounds familiar, it’s because it is: Sen. Richard Blumenthal, D-Conn., has repeatedly introduced the Forced Arbitration Injustice Repeal Act, which would ban practically all pre-dispute arbitration agreements between employers and employees.
While the Senate Judiciary Committee votes on S. 2342, the Democrats who run the House Judiciary Committee are bringing the Forced Arbitration Injustice Repeal Act to a vote this week as well.
The Forced Arbitration Injustice Repeal Act never moved and failed to garner support from a single Republican senator. Now, Democrats think a bill that seems more narrowly-tailored—but is purposefully overbroad and will have a similar end result—could help achieve their ultimate goal of banning arbitration agreements altogether.
Workers should hope this doesn’t happen. Arbitration is usually a better bet for employees than filing lawsuits.
A 2019 study of over 90,000 lawsuits and 10,000 arbitrations found that employees are three times more likely to win a dispute via arbitration than through a trial. Those who arbitrate receive damages that are, on average, double the awards from lawsuits.
According to a recent report from Thomson Reuters, the average U.S. state and local court has a backlog of 1,274 cases, up 33% since 2019. Forcing more disputes into the courtroom will only increase wait times for everyone. As the saying goes, “justice delayed is justice denied.”
The bill is almost impressive for its naked cronyism. According to OpenSecrets, the political action committee for the American Association for Justice—the trial lawyers’ lobby—spent over $8,000,000 on campaigns in 2020 alone. Barely 2% of that cash went to Republicans. The overwhelming majority went to the sorts of Democrats currently sponsoring the bill.
Those Democrats publicly dismiss arbitration as an inferior way to resolve disputes. They allege that the courts offer a better chance at justice.
But they clearly don’t believe that. Otherwise, they wouldn’t have created the carveout in the bill for labor unions—major Democrat donors and supporters.
Lawmakers shouldn’t be fooled by S. 2342’s title. While the bill claims to be about sexual harassment and assault in the workplace, it’s just a backdoor way to reward trial lawyers under the guise of helping victims.
If Congress really wants to address this problem, it should pass legislation that actually helps victims of workplace sexual assault and harassment—not something that will be a giveaway to the plaintiffs’ bar.
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