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Chairman Nadler Statement for the Markup of H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

Washington, D.C. - Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, during the markup of H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act: 

"Yesterday, this Committee heard powerful testimony from four survivors of sexual assault and sexual harassment about their harrowing experiences and the deep wounds they continue to carry with them to this day.  It was a hearing none of us will forget, and we appreciate these brave women coming forward and sharing their stories.

"As they explained, after enduring such horrific trauma at the hands of their perpetrators, they were forced to endure further trauma when they sought to hold their assailants accountable in court and found that their only recourse was a secretive arbitration process that was stacked against them.

"Arbitration was originally developed as an alternative to the court system for parties of relatively equal bargaining power to enter into voluntarily.  In recent decades, however, forced arbitration clauses have become ubiquitous in our lives—largely in the form of take-it-or-leave-it contracts between very large companies and individual consumers. As a result of this trend, these clauses have rendered our court system, in which victims have far stronger protections, inaccessible to far too many.

"Nowhere is that trend more apparent—or problematic—than in the workplace.  It is projected that, by 2024, 80 percent of private-sector workers will be forced to sign an arbitration clause when accepting employment.  A full 80 percent of our fellow citizens. 

"And consider that, over the past five years, employers prevailed over their employees in 98.1 percent of these arbitration cases.  Buried deep in the fine print of the paperwork these employees were required to sign, they bound themselves to a system in which they are nearly guaranteed to fail, they foreclosed the possibility of ever having their day in court, and in nearly all of these instances, they even gave up the right ever to talk about their experience.

"But these numbers cannot capture the true human toll of forced arbitration.

"Earlier this year, the Subcommittee on Antitrust, Commercial, and Administrative Law held a hearing examining the effect of forced arbitration clauses on our fundamental statutory rights and protections.  There, Gretchen Carlson, who survived pervasive sexual harassment by Roger Ailes, the CEO and founder of Fox News, testified about the use of forced arbitration to silence victims of systemic sexual harassment.

"Professor Myriam Gilles of the Cardozo School of Law similarly explained how forced arbitration 'perpetuates the exploitation of women in the workplace by shunting victims into a private system where each is unaware of the other and where the arbitration provider (who is chosen and paid by the employer) lacks authority to remedy systemic and recurring workplace abuse.'

"As Ms. Andowah Newton testified yesterday, no aspect of the contract with her employer was actually negotiable, including the forced arbitration clause. As a result, she was forced into an opaque system that limits discovery, does not include the protections of the Federal Rules of Evidence, and leads to secret rulings without oversight or scrutiny.  By forcing her and others into silence—by denying them the option of seeking their day in court—forced arbitration allows toxic office cultures to flourish and emboldens sexual predators to operate with impunity.

"In a system that sides with the company 98 percent of the time, accusations of sexual assault will remain hidden forever.  The company gets to pick the judge and the jury, truncate the discovery process, choose the law applied, and prevent all appeals.  When the company wins, it can request that the victim pay its attorney’s fees.

"H.R. 4445, the 'Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act,' removes these barriers to justice for survivors of sexual assault or sexual harassment by giving them a real choice of whether to go to court or to arbitrate their claim.

"In doing so, H.R. 4445 ends this unjust—and frankly repulsive— system in which American companies are seemingly better off retaliating against victims of sexual assault than taking responsibility and holding the perpetrators to account.

"This legislation is supported by a broad coalition of public-interest organizations, including the National Alliance to End Sexual Violence, National Center on Domestic and Sexual Violence, National Coalition Against Domestic Violence, National Partnership for Women and Families, the Rape, Abuse and Incest National Network, and many others. 

"Earlier this month, the Senate Judiciary Committee passed identical legislation through a unanimous voice vote with overwhelming bipartisan support. Now we must do the same. I thank my colleagues, Representatives Bustos and Jayapal, for their leadership on this issue, and I urge my colleagues to support this bipartisan legislation." - Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, during the markup of H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act: 

"Yesterday, this Committee heard powerful testimony from four survivors of sexual assault and sexual harassment about their harrowing experiences and the deep wounds they continue to carry with them to this day.  It was a hearing none of us will forget, and we appreciate these brave women coming forward and sharing their stories.

"As they explained, after enduring such horrific trauma at the hands of their perpetrators, they were forced to endure further trauma when they sought to hold their assailants accountable in court and found that their only recourse was a secretive arbitration process that was stacked against them.

"Arbitration was originally developed as an alternative to the court system for parties of relatively equal bargaining power to enter into voluntarily.  In recent decades, however, forced arbitration clauses have become ubiquitous in our lives—largely in the form of take-it-or-leave-it contracts between very large companies and individual consumers. As a result of this trend, these clauses have rendered our court system, in which victims have far stronger protections, inaccessible to far too many.

"Nowhere is that trend more apparent—or problematic—than in the workplace.  It is projected that, by 2024, 80 percent of private-sector workers will be forced to sign an arbitration clause when accepting employment.  A full 80 percent of our fellow citizens. 

"And consider that, over the past five years, employers prevailed over their employees in 98.1 percent of these arbitration cases.  Buried deep in the fine print of the paperwork these employees were required to sign, they bound themselves to a system in which they are nearly guaranteed to fail, they foreclosed the possibility of ever having their day in court, and in nearly all of these instances, they even gave up the right ever to talk about their experience.

"But these numbers cannot capture the true human toll of forced arbitration.

"Earlier this year, the Subcommittee on Antitrust, Commercial, and Administrative Law held a hearing examining the effect of forced arbitration clauses on our fundamental statutory rights and protections.  There, Gretchen Carlson, who survived pervasive sexual harassment by Roger Ailes, the CEO and founder of Fox News, testified about the use of forced arbitration to silence victims of systemic sexual harassment.

"Professor Myriam Gilles of the Cardozo School of Law similarly explained how forced arbitration 'perpetuates the exploitation of women in the workplace by shunting victims into a private system where each is unaware of the other and where the arbitration provider (who is chosen and paid by the employer) lacks authority to remedy systemic and recurring workplace abuse.'

"As Ms. Andowah Newton testified yesterday, no aspect of the contract with her employer was actually negotiable, including the forced arbitration clause. As a result, she was forced into an opaque system that limits discovery, does not include the protections of the Federal Rules of Evidence, and leads to secret rulings without oversight or scrutiny.  By forcing her and others into silence—by denying them the option of seeking their day in court—forced arbitration allows toxic office cultures to flourish and emboldens sexual predators to operate with impunity.

"In a system that sides with the company 98 percent of the time, accusations of sexual assault will remain hidden forever.  The company gets to pick the judge and the jury, truncate the discovery process, choose the law applied, and prevent all appeals.  When the company wins, it can request that the victim pay its attorney’s fees.

"H.R. 4445, the 'Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act,' removes these barriers to justice for survivors of sexual assault or sexual harassment by giving them a real choice of whether to go to court or to arbitrate their claim.

"In doing so, H.R. 4445 ends this unjust—and frankly repulsive— system in which American companies are seemingly better off retaliating against victims of sexual assault than taking responsibility and holding the perpetrators to account.

"This legislation is supported by a broad coalition of public-interest organizations, including the National Alliance to End Sexual Violence, National Center on Domestic and Sexual Violence, National Coalition Against Domestic Violence, National Partnership for Women and Families, the Rape, Abuse and Incest National Network, and many others. 

"Earlier this month, the Senate Judiciary Committee passed identical legislation through a unanimous voice vote with overwhelming bipartisan support. Now we must do the same. I thank my colleagues, Representatives Bustos and Jayapal, for their leadership on this issue, and I urge my colleagues to support this bipartisan legislation."
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