Lawmakers Want Harassment Cases Made Public

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By Chris Opfer

Forced arbitration agreements that critics say protect sexual harassers and silence victims would be a thing of the past under legislation from a bipartisan group of lawmakers.

Sen. Kirsten Gillibrand (D-N.Y.) and Rep. Cheri Bustos (D-Ill.) introduced a bill Dec. 6 to ban employers from forcing workers to sign agreements that require them to fight harassment cases in front of private judges and prevent them from talking about the allegations in public. Republicans co-sponsoring the measure include Sen. Lindsey Graham (S.C.) and Reps. Walter Jones (N.C.) and Elise Stefanik (N.Y.).

“This is an open invitation to the business community to get behind this bill because I think you will be rewarded,” Graham told reporters Dec. 6. “I think a hostile work environment is going to change only when you bring about change. To hope for change is not enough.”

The legislation comes as a wave of sexual harassment allegations against public figures has brought renewed scrutiny to forced arbitration and confidentiality agreements. Businesses and others often use the agreements to cut litigation costs and avoid public attention, but worker advocates say the deals shield harassers and make it harder for victims to get justice.

Sexual assault and harassment allegations against Hollywood mogul Harvey Weinstein started a whirlwind of mostly women stepping forward to lodge similar complaints, including against NBC news anchor Matt Lauer, comedian Louis C.K., and actor Kevin Spacey. Sexual harassment allegations have also rocked the U.S. Capitol: Rep. John Conyers (D-Mich.) resigned in response to the news that he had settled a sex harassment case, and Sen. Al Franken (D-Minn.) and Rep. Blake Farenthold (R-Texas) are facing similar accusations.

The U.S. Supreme Court is considering whether to scrap arbitration agreements that preclude workers from suing their bosses in class or collective actions. The justices are likely to rule on a pair of cases involving the issue next year.

Eye on Capitol

Gillibrand, Sen. Patty Murray (D-Wash.), and other Democrats Dec. 6 called on Franken to step down. Franken is scheduled to make an announcement about his plans the morning of Dec. 7.

Lawmakers in both chambers are also pushing legislation that would revamp sexual harassment claim procedures in the Capitol. That includes closing a 90-day waiting period for staffers and members who say they’ve been harassed and scrapping forced confidentiality agreements.

“We need to make this right here within the Capitol and within all of our offices,” Bustos told reporters.

Business Group Backing?

Graham urged business advocacy groups, including the U.S. Chamber of Commerce, Business Roundtable, and the National Federation of Independent Business, to support the move to ban arbitration agreements in the private sector.

“While we are analyzing the legislation closely, Business Roundtable certainly agrees that workplaces should be free from harassment of any kind,” spokeswoman Rayna Farrell told Bloomberg Law. “Business Roundtable and our members strive to provide work environments where each and every employee is treated with dignity and mutual respect.”

Representatives for the Chamber and NFIB didn’t immediately respond to Bloomberg Law’s requests for comment.

A pair of management attorneys told Bloomberg Law that there are plenty of reasons that businesses opt for arbitration instead of litigation, including cost and efficiency. Valerie Hoffman, an attorney for Seyfarth Shaw in Chicago, and David Garland, a lawyer with Epstein Becker & Green in New York, said employers can do a lot more to stop sexual harassment by strengthening their workplace policies rather than by scrapping arbitration agreements.

“Settlements may still contain non-disclosure provisions so public information will nevertheless be limited,” Hoffman said. “The real issue here is that management, including boards of directors, needs to take action to eradicate harassment when they have good evidence that there is a problem.”

Gretchen Carlson, a Fox News anchor who says she was fired for refusing former news chief Roger Ailes’ sexual advances, is also supporting the bill. Carlson got around an arbitration agreement with Fox by suing Ailes personally.

Garland represented Ailes in that litigation. He told Bloomberg Law—speaking on behalf of the firm, not any client—that the focus on arbitration agreements may have more to do with putting a spotlight on public figures accused of bad behavior than preventing more common cases of sexual harassment in the workplace.

“The way to combat sexual harassment in the workplace is to have strong policies to make sure it doesn’t happen,” Garland said. “Let’s not try to enact a solution that might satisfy our curiosity about the big names cases when the system works pretty well and allows parties to resolve claims efficiently.”

To contact the reporter on this story: Chris Opfer in New York at copfer@bloomberglaw.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

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