Yuri Gripas/Abaca/Sipa USA via AP Images
President Joe Biden signed into law H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, March 3, 2022, at the White House in Washington.
In February, there was a bit of to-do about Congress actually passing a bill on a bipartisan basis. That bill, which had already passed the Senate on a voice vote, banned employers from forbidding employees to sue them in court for sexual abuse or harassment and compelling them instead, as a condition of employment, to submit their charges to an arbitration process in which employers tend to fare far better than they do in court.
When this ban-on-forced-arbitration bill reached the House floor, it received the same bipartisan support it had in the Senate. While all House Democrats voted yes, so did 113 Republicans, while just 97 GOPniks voted no.
That, however, was then.
Last Thursday, the House voted on a bill banning all forced arbitration, not just in cases of sexual abuse. It nullified employers’ right to deny workers their day in court for any other form of employer misconduct; it also nullified companies’ right to include forced arbitration clauses in their routine contracts with consumers—which is why the very small print in the contracts consumers sign for, say, cable, phone, or delivery services requires those consumers to submit to forced arbitration, too.
In recent years, forced arbitration clauses have become standard in many employment and consumer contracts. How many? In 2019, a study by the Economic Policy Institute, the National Employment Law Project, and the Center for Popular Democracy documented that more than half of American workers were already bound to such contracts, and projected that if the trend continued, fully 80 percent of U.S. workers would be bound by those terms by 2024.
In 2019, California became the only state to ban forced arbitration in all instances, a law that the Ninth Circuit Federal Appellate Court upheld last September, though the worker-phobic U.S. Supreme Court may not look so kindly on anything that actually restores worker rights. Unionized workers, who are able to negotiate their terms of employment, are not subjected to forced arbitration either—but only 6 percent of the nation’s private-sector workers are unionized.
When the House voted last Thursday, however, all but one of Republicans who’d voted to ban the practice in cases of sexual harassment switched sides.
The bill passed by a 222-to-209 margin, the yes side consisting entirely of Democrats and one lonely Republican—Florida’s Matt Gaetz. Gaetz, of course, is a charter member of the Trumpian Far Right, but this is an issue on which he’s been compelled to go against what probably is his every instinct. That’s because he’s under ongoing investigation for what’s been alleged to have been his role in a sex trafficking ring, so it was no surprise that he voted with the GOP’s one-day majority in favor of the ban in cases of sexual abuse.
However, his vote encountered considerable ridicule from critics who claimed he was clearly just covering his ass. Apparently, Gaetz concluded that the best way to demonstrate that he really, really opposed subjecting women to degrading treatment was to support the overall ban on forced arbitration. He actually spoke on the House floor in favor of the bill, making a compelling case. “When our fellow Americans get a cellphone contract, when they get cable, they get internet, they are subject to forced arbitration,” he said. “People end up getting really screwed in the process.”
Indeed. Banning forced arbitration is actually a pretty easy case to make. Now that the bill goes over to the Senate, however, it will be immediately embalmed, not least because Sens. Manchin and Sinema won’t overturn the filibuster rule—one anti-democratic stricture riding to the rescue of another.
