With rare bipartisan support, the Senate passed landmark workplace legislation on Thursday that forbids companies from forcing sexual harassment and assault claims into arbitration.
Why it matters: The secretive dispute resolution process keeps litigation out of the public eye and is widely considered to favor employers over workers. The bill is the first major piece of legislation to come out of the upheaval of the #MeToo era. It now heads to President Biden for his signature.
- It's also a victory for former Fox News host Gretchen Carlson, who's credited with bringing together a diverse and cross-party group behind the bill.
- The members include Sens. Lindsey Graham (R-S.C.), Kirsten Gillibrand (D-N.Y.) and Rep. Cheri Bustos (D-Ill.).
Details: The bill, the Ending Forced Arbitration Act, passed by majority voice vote after passing the House with overwhelming bipartisan support on Monday.
- The president has said he backs the legislation, and White House officials have said it could be a model for addressing forced arbitration for other claims.
How it happened: "Gretchen Carlson sat down with Lindsay [Graham] to tell him about her experience at Fox News, and I think that was something very important to him," Gillibrand said during an interview with Axios on Wednesday.
- She said Graham then approached her about working together on legislation, which they introduced in 2017.
- Carlson worked closely with Bustos in the House, and Gillibrand and Graham in the Senate, and is credited with bringing some of the 10 Republican co-sponsors — familiar with her from Fox News — on board.
What they're saying: Advocates who've pushed for years against arbitration marveled that the bill was actually being signed into law.
- "Civil rights groups and even presidents weren't able to get this done," said Cliff Palefsky, an employment lawyer who's been advocating for such legislation for decades and worked with Carlson on a similar law in California.
Background: Carlson tried to file a sexual harassment suit against Fox in 2016 but was shocked to learn she was blocked from taking the network to court.
She'd signed an employment agreement requiring her to go to arbitration — essentially a private courtroom companies pay to use.
- "That was the darkest day," she told Axios. Ultimately, Carlson and her lawyers figured out a workaround — suing former network president Roger Ailes directly. He was later ousted, a sea change for Fox.
- She settled her case for $20 million and is still bound to a nondisclosure agreement forbidding her from discussing the details. Since then, Carlson's been building support for the legislation.
The other side: Companies like using arbitration because it keeps these kinds of cases out of the public's eye. If they don't settle, and actually wind up in one of these private courts, the employer is likely to win.
- Though some businesses have moved away from forced arbitration in sexual harassment cases, the practice is still popular with big companies, according to a report last year from the American Association for Justice, a trial lawyer group.
- The Chamber of Commerce pushed back against the bill, arguing in a letter to lawmakers last fall that "arbitration is a fair, effective, and less expensive means of resolving disputes."
- The trade group did not respond to multiple emails for comment.
What's next: The bill is relatively narrow, and advocates hope to pass further measures barring forced arbitration in other areas of civil rights, including race discrimination, as well as in consumer contracts.
