“Long overdue.” “It will help us fix a broken system.” “You’re going to have a chance to be heard differently.”
That’s how lawmakers from both parties are describing the workplace harassment legislation that passed the Senate on Thursday after years of deliberations. It now heads to President Joe Biden’s desk for his signature, and the White House has expressed full support for the measure.
But what does the legislation specifically seek to address, and how could it affect your workplace moving forward?
Here’s what you need to know.
What does the legislation do?
The bill, called the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, bans forced arbitration in cases involving sexual misconduct and allows victims the option of bringing up the dispute in federal, tribal or state court.
Once signed into law, the legislation will void any forced arbitration clauses in current contracts pertaining to sexual assault or sexual harassment, allowing victims to take their cases to court. Companies will be prohibited from writing those clauses into contracts in the future.
Any case previously settled through forced arbitration, however, will remain closed.
What are arbitration clauses?
Arbitration clauses limit the legal options for employees who are victims of sexual harassment and sexual assault, and make it difficult to hold companies and employers accountable for wrongdoing.
Arbitration can be very costly, which also places a large burden on workers, and it does not allow for the option of an appeal.
“It’s not the most level playing field. It’s a narrower scope of discovery. It often tends to be tilted towards the employer,” attorney Michael Filoromo, who specializes in employee rights, told CNN Thursday. “And because it’s not public, you miss out on the opportunity to have other people come forward and corroborate things.”
How common are arbitration clauses?
Arbitration clauses have for a long time been standard practice. According to lawmakers, more than 60 million Americans are subjected to these provisions in employment contracts.
“It impacts a huge chunk of the workforce,” Filoromo said.
“When we have people come to us, we ask people if they have a mandatory arbitration provision as part of our initial intake process, and it’s amazing how many people just say, ‘I don’t know.’”
Why is this issue only being addressed now?
The bill was initially introduced in 2017 amid the rise of the #MeToo movement, which shined a light on these types of legal provisions in employment contracts that prevent victims from being able to sue their perpetrators in court – instead confining them to often-secretive, costly proceedings that many say are biased toward corporations.
Lawmakers in both chambers of Congress have worked for more than four years to pass this significant measure. The legislation was introduced by Republican Sen. Lindsey Graham of South Carolina; Democratic Sens. Kirsten Gillibrand of New York and Dick Durbin of Illinois; and Democratic Rep. Cheri Bustos of Illinois.
Who will benefit the most from this legislation?
Gillibrand, a co-sponsor of the legislation, said on Thursday that the arbitration clauses that this legislation seeks to address “are especially prevalent in low-wage fields and industries with a disproportionate high number of women of color.”
“These clauses leave those women who cannot afford to challenge their employers without any recourse,” Gillibrand added. “Survivors deserve a real chance at justice.”
Patti Perez, a sexual harassment prevention expert, told CNN on Thursday that certain segments of the working population, specifically those with a formal education, are more likely to benefit from the legislation.
“That doesn’t mean that I don’t think this is a valuable piece of legislation. I just think that it is a little pie-in-the-sky to think that it’s gonna solve all of those problems” related to power dynamics in the workplace.
What does this mean for your workplace?
“For me, the biggest message from this, if I were a corporate leader or if I were an employee, is that the days of having layers of structure in place that exacerbate that power differential between an employer and an employee need to kind of go away,” Perez said.
“I think that especially the new generation of workers that are coming into the workplace, there’s just going to be a higher demand for greater transparency.”
Filoromo similarly said the legislation can functionally “increase the accountability and try to even up – come closer to making a more level playing field.”
“It’s tough to bring these cases. It’s tough to come forward. It takes a lot of courage. And then if you’re also dealing with your credibility being attacked, and not even really having knowledge that there are other witnesses that could back you up – that’s a real problem,” he said.
“I think where somebody has been the victim of harassment, I mean that’s a stripping of autonomy, it’s a demeaning, kind of degrading thing. And to have the choice of how you want to handle that, I think is really good.”
CNN’s Ali Zaslav and Jessica Dean contributed to this report.