Andrew Harnik/AP Photo
From left, former Fox News host Gretchen Carlson, accompanied by Rep. Cheri Bustos (D-IL), Sen. Kirsten Gillibrand (D-NY), and Sen. Lindsey Graham (R-SC), speaks during a news conference introducing sexual harassment legislation, December 6, 2017, on Capitol Hill in Washington.
On November 4, the Senate Judiciary Committee approved a bill called the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. The unanimity of its support—it passed by voice vote—might make you think it came from a different Congress. Sens. Kirsten Gillibrand (D-NY) and Lindsey Graham (R-SC) introduced it, with support from Sheldon Whitehouse (D-RI) and Richard Blumenthal (D-CT) on the left, and Marsha Blackburn (R-TN) and Josh Hawley (R-MO) on the right.
The Gillibrand-Graham bill, which would finally allow survivors of workplace sexual misconduct the right to take their claims into a civil court, was not the full elimination of mandatory arbitration clauses that many progressives favor. However, it could restore some hope that a post–Build Back Better legislative agenda to make legitimate progress exists in this Congress. And carving out sexual misconduct cases from arbitration has always been extremely popular: In 2018, every state attorney general, Democratic and Republican, urged Congress to do so, in an unprecedented show of support.
But what happened the night before the Senate Judiciary markup may be more revealing.
That night, a new bill, S.3143, was introduced by Sen. Joni Ernst (R-IA), who is not a member of the Judiciary Committee, which has jurisdiction over arbitration law. Like the bill that had passed the committee, Ernst’s bill prohibited enforcement of arbitration clauses for cases of sexual assault. But it did not do the same for claims of sexual harassment, which constitute the vast majority of claims in the workplace. Instead, it added a number of “rights” for harassment victims, including the ability to get legal representation in arbitration, report violations to criminal authorities, and potentially talk about cases publicly, unless there’s an agreement between the two parties. Experts have described these provisions to the Prospect as “window dressing” that would effectively confer no rights to victims.
The Gillibrand-Graham bill would finally allow survivors of workplace sexual misconduct the right to take their claims into a civil court.
It was a carve-out of the carve-out, drawing a distinction between how different types of sexual misconduct cases are treated. Given how the deck is often stacked against victims in arbitration, it would simply make it harder for those subjected to sexual harassment to win justice. As one Hill aide told the Prospect, “It stands for the proposition: Harass employees all you want, just don’t assault them, which is a gross claim.”
Simultaneously with the bill’s introduction, the U.S. Chamber of Commerce distributed a bulletin to Senate offices. (Some offices got the bulletin before the announcement about the legislation.) The Chamber stated that it “strongly supports S.3143,” the Ernst bill that still relegates sexual harassment claims to forced arbitration. It also included some laudatory notes about the “fair, effective, and less expensive” arbitration system, which they said is more flexible than civil courts.
Importantly, the Chamber’s chief policy officer, Neil Bradley, wrote, “Members of Congress who cosponsor this legislation will receive credit for the Leadership component of the Chamber’s ‘How They Voted’ scorecard.” What that means is that the Chamber was making support of the Ernst bill a top priority, and would be watching to see who else would support it.
The release of the Ernst bill and the Chamber letter didn’t sap any bipartisan support for Gillibrand-Graham in the Judiciary Committee. It didn’t even get mentioned in the markup. But it does reveal a common tactic on Capitol Hill. The Chamber of Commerce has never formally opposed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, though they have focused intensely on arbitration issues in registered lobbying in 2021. Instead, they’re attempting to use weak substitute legislation to peel off support for the more aggressive version.
The situation will replay in the House Judiciary Committee this week. There, the companion version to the Senate bill, H.R. 4445, will get a noteworthy hearing on Tuesday, featuring victims who were assaulted by CEOs of companies. (At press time, the list of witnesses had not been released.) The next day, there will be a markup of the bill, but there is also a narrower substitute, H.R. 2906, co-authored by Reps. Debbie Lesko (R-AZ) and Karen Bass (D-CA), that only exempts sexual assault from arbitration, not sexual harassment.
“The idea is to provide cover for House Republicans during the hearing and the markup,” said a source who has been lobbying on the broader legislative effort. “It’s a way for the Chamber to point to something.”
Sen. Ernst and Rep. Lesko’s offices did not respond to a request for comment. Neither did the U.S. Chamber of Commerce.
“The idea is to provide cover for House Republicans during the hearing and the markup.”
GRETCHEN CARLSON, the former Fox News host who has made ending the forced arbitration system for sexual misconduct her crusade since the late former CEO of the network, Roger Ailes, sexually harassed her, expressed her disapproval of the Ernst bill in a letter to the Senate. “Sadly, rather than having the courage to publicly admit it opposes the bill, the U.S. Chamber of Commerce, working with Senator Ernst, is offering an alternative bill which entirely fails survivors and must be opposed,” Carlson wrote.
In an interview with the Prospect, Carlson, who was instrumental in garnering bipartisan support for the broader bill, lamented the Chamber’s position. “The Chamber of Commerce that I grew up with in my small town in Minnesota is not the Chamber of Commerce of 2021, which is an incredibly powerful lobbying arm for big business,” Carlson said. “I ask this question to anyone misinformed about this: ‘Raise your hand if you favor women and men being sexually harassed in the workplace and being silenced.’ No hands go up.”
But the Chamber, on behalf of some of the largest companies in America, has drawn a line. “The Chamber has decided this is where their member companies are comfortable,” said the lobbyist source. “They cannot do forced arbitration for sex assault, but they’re hedging on sexual harassment. It’s a horrifying Washington-knows-best, corporations-know-best philosophy.”
In addition to continuing gag orders on victims in arbitration (if that’s the only way both sides can reach an agreement), the Ernst/Chamber bill denies the ability for precedents to be established in workplace sexual harassment cases. This is traditionally how case law gets settled, making it harder for perpetrators to escape justice. In the arbitration system, where the employer picks the arbiter (the Ernst/Chamber bill requires “impartial” arbitrators who disclose any financial interests or past relationships with the parties, but still lets the employer choose who decides the cases), the law essentially gets rewritten with every case.
Concealment of these cases in arbitration led to situations like the Sterling Jewelers scandal, where hundreds of women were groped and harassed over decades, along with thousands of other incidents across numerous industries that were never made public. “The public is pissed off,” Carlson said. “They were like, ‘This still happens in the workplace? Why did we not know about this?’ Because it all goes to the secret chamber of arbitration.”
The lobbyist source indicated that the Chamber has been lobbying against the Gillibrand-Graham bill. “They’ve put a lot of pressure on their friends to oppose it,” the source said. “They know that they’re wrong. I’ve yet to see anything in writing saying they’re opposing and these are the reasons why they’re opposing.”
It’s notable that Sen. Ernst decided to partner with the Chamber on the weak substitute. Not only is she a sexual assault survivor, but she has been a stalwart partner with Gillibrand on an effort to fight a sexual misconduct epidemic in the military. The Military Justice Improvement Act would take both sexual assault and sexual harassment cases out of the military chain of command, as having one’s officers rule on a case is seen as an impediment to having victims come forward.
Ernst is taking the exact opposite position with respect to workplace sexual misconduct, splitting with her bipartisan partner in Gillibrand. There, she makes a distinction, keeping sexual harassment in arbitration while letting sexual assault out from under it.
Supporters of the Gillibrand-Graham bill are pushing for the Senate to “hotline” it to the floor before the end of the year. That would require unanimous consent from all senators, including Joni Ernst. “I’m from Minnesota, Ernst is from Iowa,” Carlson said. “We have the same Midwestern sensibility. We’ve had several meetings and phone calls. I have been optimistic that I’ll get her.”
But the true test of whether the Chamber’s gambit has worked will come in the House hearing and markup this week. The Chamber’s influence has waned in the Republican Party, as it supported the bipartisan infrastructure bill that the GOP largely opposed. House GOP Leader Kevin McCarthy has kicked Chamber representatives off legislative strategy calls. “I didn’t even know the Chamber was around anymore,” McCarthy said in a recent interview.
Residual support for big business remains in the GOP caucus, however, which could drive a wedge through a thoroughly bipartisan workplace access to justice policy. Then again, Carlson said, “I’m not even sure what [the Chamber is] lobbying for is even a good idea for business. I’ve said to companies, ‘Join me and get on the right side of history before you’re forced to do it.’ In many cases, they’ve made the change on the spot.”
