56 AGs Urge Congress to Take Action on Sexual Harassment
By Sean Lally, Staff Writer
The recent wave of sexual harassment disclosures has had jostling effects across the socio-political sphere. Women all over the country have joined in solidarity to tell their story, and in doing so, have begun to dismantle some of the power frameworks that make sexual assault (and sexism more broadly) possible. A number of powerful (male) executives have been cast out of their respective companies. Now, 56 attorneys general – all members of the National Association of Attorneys General – have banded together to push for legislative change. In February, the AGs wrote a two-page letter to the Congressional Leadership, urging them to enact “needed legislation to protect the victims of sexual harassment in the workplace.”
The missive takes aim at a now-common practice utilized in worker-employer disputes. Companies throughout the country have been using what are known as mandatory arbitration agreements to keep complaints out of courts, where businesses can spend a fair amount of money on related fees. Under these agreements, employees must make their claims without the oversight of an official judge, and thus, they must forfeit their right to due process. As a result, it’s not uncommon for workers to lose out on much-deserved compensation. Moreover, the results of these arbitrations are usually kept private, making it very hard to track the effectiveness of this practice.
Silencing Sexual Harassment
Nearly half the US workforce is subject to arbitration agreements – that’s nearly 60 million people. What’s more, those who are victimized by sexual harassment in the workplace, and have the courage to come forward, can sometimes be forced into a private arbitration. As a result, the outcome of their complaint is often sealed, leaving a force field of silence to protect the perpetrator. It’s precisely this silencing-effect that the 56 AGs have taken issue with: “Ending mandatory arbitration of sexual harassment claims would help to put a stop to the culture of silence that protects perpetrators at the cost of their victims.”
Legislation on the Table
Their timing is likely strategic, as the letter arrived not long after a bipartisan bill, entitled “Ending Forced Arbitration of Sexual Harassment Act,” was introduced by Democratic Representative Cheri Bustos, and Democratic Senators Kirsten Gillibrand and Kamala Harris. Republican Senator Lindsey Graham, and Republican Representatives Walter Jones and Elise Stefanik, joined as co-sponsors on the bill.
Gretchen Carlson, a former Fox News anchor and an outspoken opponent of forced arbitration, voiced her support for the bill: “Sexual harassment is not partisan because women from all walks of life and politics are targeted." She continued, “Let's get on the right side of history with both parties. Because when somebody decides to sexually harass you, they don't ask you if you are a Republican or a Democrat or an independent, like I am, first. They just do it."
In their letter, the AGs highlighted the importance of transparency: “Additional concerns arise from the secrecy requirements of arbitration clauses, which disserve the public interest by keeping both the harassment complaints and any settlements confidential. This veil of secrecy may then prevent other persons similarly situated from learning of the harassment claims so that they, too, might pursue relief.” In the end, the AGs made it very clear that the legislation on the floor should – at the very least – ensure that victims of sexual harassment (and assault) “have a right to their day in court.”
The US House of Representatives passed a bill in early February that could change the way that sexual harassment is handled at Capitol Hill. The measure, entitled “Congressional Accountability Act of 1995 Reform Act,” would gut certain parts of the Congressional Accountability Act, which by-and-large protects harassers. For instance, certain roadblocks – e.g. 30 days of mandatory counseling and a mediation period – would vanish. The bill would also provide employees with an advocate who could offer legal counsel during meetings with the Office of Compliance and the Ethics Committee.
Looking ahead, if Congress is willing to overhaul its own sexual harassment policy in the name of equal treatment, legislators may be willing to universalize that very same policy.