Chairman Nadler Statement for Hearing on "Silenced: How Forced Arbitration Keeps Victims of Sexual Violence and Sexual Harassment in the Shadows"
Washington, November 16, 2021
Washington, D.C. - Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, during a hearing entitled, "Silenced: How Forced Arbitration Keeps Victims of Sexual Violence and Sexual Harassment in the Shadows:"
"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, which lacks many of the fundamental due process and transparency safeguards present in the courts, has worked its way into nearly every aspect of our lives—largely in the form of take-it-or-leave-it contracts between very large companies and individual consumers. The sum total of this trend is that forced arbitration clauses have rendered our court system 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. Somewhere in the paper these workers 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.
"Now, it is easy to quantify the percentage of workers who give up their right to a trial by jury in order to get a job. We can count the number of individuals who have no idea what they have given away until it is too late.
"But it is difficult to fathom the true human toll of forced arbitration—stories that cannot be distilled down to a number or a statistic. That is why we are here today: to step back from the statistics and talk about a system that is fundamentally unjust.
"Four of our witnesses today are survivors of sexual harassment and sexual assault. We are here to listen to their stories—and because they were forced into arbitration agreements as a condition of their employment, this is the first time many of these stories will be told in public.
"By forcing these women into silence—by denying them their day in court—forced arbitration allowed toxic office cultures to flourish and emboldened sexual predators to operate with impunity.
"And, for each one of the survivors before us today, imagine the thousands of forced arbitration schemes that worked. The employee who really needed that job, scared into silence. The person forced to look for other work in another field after being fired for reporting their sexual trauma. The colleagues who witnessed their coworker fired for doing the right thing, but who just cannot afford to make the same choice. The new employee who will never know that their boss is a predator, because everyone involved in the last incident must remain silent or also lose their job.
"Think of all the employees who went into arbitration. Think of the few who won against staggering odds. Remember that, even now, the vast majority still cannot say anything about what they have endured. Remember that there are people who feel comfortable sexually harassing and stalking their colleagues because they know they will never have to go to court or face public shame. And remember that forced arbitration of sexual assault claims allows hundreds of companies to look the other way.
"Because, in a system that binds employees to secrecy forever, a company with a history of sexual assault and harassment claims against its executives is going to manage that liability by forcing its employees to sign an arbitration clause. 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.
"In this context, forced arbitration sounds repulsive because it is. We have created a system in which American companies are seemingly better off retaliating against victims of sexual assault than taking responsibility and holding the perpetrators to account.
"Forced arbitration has robbed survivors of sexual violence and sexual harassment of their voice. The four victims who appear before us today are only here because a congressional subpoena has compelled their testimony. Without that subpoena, they would still be unable to share their stories.
"And, before we begin, we should take a moment to observe their bravery. They stood up to their harassers. When they were told to stay silent, they resisted. And when they had the opportunity to appear before Congress—and in front of the world—they came forward to give their testimony. This is true courage, and this Committee and the American people are grateful.
"These witnesses are not here for themselves. They are not here to restart their arbitrations. As much as we may like to, we in Congress cannot change the outcome of those cases.
"No, these brave women are here for the countless individuals without a voice—not just women, but all those who have been assaulted and harassed and don’t know where to turn, the person who was fired for reporting sexual harassment and just found out they signed an arbitration clause in that mess of papers they were given on their first day, and the new employee who might be the next victim of a predator operating under the protection of forced arbitration."The survivors before us today were silenced by their forced arbitration clauses. And they are here to show us what a world with accountability might look like. I, for one, am here to listen. Thank you again for being here today."