Trial Magazine

One of the hallmarks of this Congress has been endless gridlock. However, when it comes to protecting workers and consumers from forced arbitration, there are signs of a willingness to work across the aisle.

A victory for sexual assault survivors. Congress recently passed the Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act (Pub. L. 117-90) with overwhelming bipartisan support. This law restores the rights of sexual assault and harassment survivors by allowing them to hold their perpetrators and the corporations that enable the abuse accountable in court.

It took years of work by AAJ, plaintiff attorneys and their clients, and countless ssurvivors—including Gretchen Carlson—who were brave enough to tell their stories. This legislation made it across the finish line and was signed into law because of all these efforts.

The Senate, a notoriously difficult chamber to move legislation through, went first—advancing the bill after a unanimous vote in the Senate Judiciary Committee. Not one senator spoke out against the bill during the committee markup, and a bipartisan group announced they would co-sponsor the bill, helping it gain momentum.

The power of survivors’ stories. Survivor advocates were invaluable in spreading the message about the importance of this legislation. The House Judiciary Committee held a hearing featuring survivors’ powerful stories—four brave women testified about their experiences of being silenced and forced into arbitration after they survived horrific sexual assault and sexual harassment.

These survivors were, for the first time, able to speak publicly about their experiences under the protection of congressional subpoenas. The testimony spoke for itself and in ways that impacted all members of Congress and the media. The House Judiciary Committee voted the bill out of committee the next day with strong bipartisan support.

After both bills cleared the committees with strong bipartisan support, the legislation was finally ready for prime time. While there was plenty of work behind the scenes shoring up support and addressing textual concerns—such as clarifying the definition of sexual harassment and other terms—the legislation ultimately moved quickly through both chambers.

The House voted overwhelmingly in support of the legislation (335-97), and just three days later, the Senate quickly passed the House bill by voice vote on the Senate floor, demonstrating the broad support for the bill and avoiding the procedural hurdles to passage in the Senate. President Biden has now signed this historic legislation into law.

The broader fight against forced arbitration. AAJ has also made great strides in efforts to more broadly restore the rights of all workers, consumers, investors, patients, and small businesses by supporting the passage of the Forced Arbitration Injustice Repeal (FAIR) Act in the House.

Buried in the fine print of everything from online click-through “terms and conditions” to employee handbooks to nursing home admissions forms to credit card agreements are forced arbitration clauses that allow corporations to break the law but never be held publicly accountable. These clauses give corporations the ability to funnel plaintiffs’ cases into a rigged, secretive process controlled entirely by corporations. The FAIR Act would simply restore individuals’ rights by making forced arbitration between individuals and corporations illegal—allowing people to choose how to pursue their rights. 

The future of the FAIR Act in the Senate is uncertain, but AAJ is continuing to work to increase support for the eventual ending of forced arbitration. AAJ also supports adding provisions to limit or end forced arbitration anytime Congress acts to provide remedies.

For more information on how you can support the fight to end forced arbitration, contact me or AAJ Public Affairs.

Bonnie Johnston is AAJ’s senior federal relations counsel and can be reached at bonnie.johnston@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.