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#MeToo, Congress and the Supreme Court: Who gets the last word on sexual harassment?

#MeToo, Congress and the Supreme Court: Who gets the last word on sexual harassment?
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After months of negotiations, last week the U.S. Senate finally passed bipartisan legislation to change Congress’s internal procedures for handling sexual harassment complaints. Known informally as Congress’s “#MeToo bill,” the Congressional Accountability Reform Act makes critical reforms to better empower and protect workers on Capitol Hill. But now that Congress has made progress on cleaning up its own house, lawmakers must turn to addressing the problem more broadly.

They should start by abolishing a powerful legal tool that has allowed sexual misconduct to remain in the shadows for too long: forced secret arbitration.  

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Currently, a majority of American non-union employees are subject to boilerplate employment agreements that force them to give up their right to file a lawsuit in the event of harassment. Many of these agreements also contain confidentiality provisions forcing employees to make a preemptive vow of silence. Together, nondisclosure agreements and mandatory arbitration clauses combine to make it literally illegal for a victim to share his or her story with the world — or even to access the legal system at all.

 

Initial headway is being made on this front: Uber announced this month that it would join Microsoft and several major law firms in voluntarily abandoning the use of arbitration and nondisclosure agreements for claims of sexual assault and harassment.

These measures represent real progress. But ending secret forced arbitration across American workplaces requires more than voluntary action from individual employers. It requires legislation.

Fortunately, state legislatures are acting. New York and Washington have passed legislation banning nondisclosure and arbitration clauses for sexual harassment claims in employment contracts, as a matter of state law. Similar bills are pending in at least a dozen other states.

But a 5-4 Supreme Court decision issued this term, in a case called Epic Systems Corp. v. Lewis, demonstrates why federal action is still critical: these newly-minted state laws are highly vulnerable to legal challenge.

That’s because over the past two decades, the Supreme Court has issued a series of decisions interpreting a federal statute, the Federal Arbitration Act, to allow companies to force employees into secret arbitration as a condition of employment. This doctrine reached its apex in 2011, when the court ruled that the act overrides any state law that “disfavors” arbitration, thereby invalidating any state law that “prohibits outright the arbitration of a particular type of claim.”

In Epic Systems, the court continued its expansive interpretation of the arbitration act, ruling that an estimated 25 million employees are barred from seeking to arbitrate their claims collectively with their fellow workers. This ruling nullifies explicit protections in another federal statute, the National Labor Relations Act, for workers to engage in “concerted activities” — which for 75 years has been understood to encompass collective lawsuits.

The Supreme Court’s latest pro-arbitration decision reinforces that state laws banning arbitration of sexual harassment claims will be challenged, and that these challenges will find a welcome audience at the Supreme Court.

A lasting solution, then, must come from Congress. Thankfully, Rep. Cheri BustosCheryl (Cheri) Lea BustosThe Hill's Morning Report — Markets on edge over Trump, Xi trade negotiations House Dems worry about lack of women of color in leadership Bustos elected to lead Democratic campaign arm MORE (D-Ill.) and Sen. Kirsten GillibrandKirsten Elizabeth GillibrandNRA's Loesch: Gillibrand’s 'future Is female’ tweet 'is pretty sexist' Would-be 2020 Dem candidates head for the exits Rubio mocks Gillibrand tweet saying the future is ‘female’ and ‘intersectional’ MORE (D-N.Y.) have introduced bills in both chambers to ban predispute arbitration of sexual harassment claims. The legislation has received widespread, bipartisan support: its Republican sponsors include Sens. Lindsay Graham and Lisa MurkowskiLisa Ann MurkowskiSenate advances Trump energy pick after Manchin flips The Senate must reject Bernard McNamee’s nomination for FERC Overnight Defense: Congress pauses to mourn George H.W. Bush | Haspel to brief senators on Khashoggi killing | Soldier is fourth to die from Afghan IED blast MORE and Rep. Walter JonesWalter Beaman JonesHow Republicans who voted against ObamaCare repeal fared in midterms Trump deals with Saudis may be worth much less than 0 billion GOP leaders hesitant to challenge Trump on Saudi Arabia MORE, who recently was rated as the 24th most conservative member of Congress.

Likewise, led by Democrat Josh Stein of North Carolina and Republican Pam Bondi of Florida, attorneys general from all 50 states, the District of Columbia, and the five federal territories have urged Congress to end “the injustice of forced arbitration and secrecy” for sexual harassment claims. This effort was a striking act of bipartisanship: it was the first unified action by all the nation’s state and territorial attorneys general in nearly a decade.

But the bill nonetheless has stalled in committee, and now reportedly is under adverse lobbying by business groups. One positive harbinger for the bill is that Congress has reached bipartisan agreement to end the use of forced mediation for sexual harassment complaints arising on Capitol Hill.

It’s true that arbitration can be an efficient, effective process for resolving workplace disputes, including incidents of sexual harassment or assault. Confidentiality also can be a valuable tool in encouraging victims of harassment to come forward, and allowing them to move on. Thus, we know that many victims prefer to — and still will — choose to resolve their harassment claims quietly and outside the courts. But we agree with Uber’s General Counsel Tony West that such decisions ultimately “should be up to the survivor, not us.”

The bill pending in Congress does nothing to limit victims from voluntarily deciding to resolve claims confidentially through arbitration. What it does is prevent employers from forcing employees to enter boilerplate contracts that mandate silence and waiver of legal rights before harassment even occurs. And because the Supreme Court stands poised to stymie state-level solutions, Congress is the only entity that can fully address the problem. This legislation should be next up on Congress’s #MeToo agenda.

Ally Coll Steele is president and cofounder of the Purple Campaign, a nonprofit organization to end workplace sexual harassment. She was the deputy director of voter protection for Hillary ClintonHillary Diane Rodham ClintonComey reveals new details on Russia probe during House testimony Clinton among VIPS attending pre-wedding celebrations for daughter of India’s richest man Comey’s confession: dossier not verified before, or after, FISA warrant MORE’s 2016 presidential campaign.

Ryan Park is deputy solicitor general of North Carolina. He was a clerk to U.S. Supreme Court Justices Ruth Bader Ginsburg and David H. Souter.