One of the few things Congress seems to be able to garner bipartisan support for these days is a virtue-signal laden bonanza for trial lawyers.
The “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” is being championed by New York Senator Kirsten Gillibrand, but has, in the past, garnered Republican co-sponsors and support. The Act’s major consequence, however, will not be protecting women from sexual assault or harassment, but padding, once again, the pockets of the profession of about a third of the House of Representatives and the majority of Senators.
The bill is a delayed response to the #MeToo movement, which has petered out due to moving focus off criminally convicted sexual predators like Harvey Weinstein and on to incidents either minor or ambiguous. It bans enforcement of so-called “forced arbitration” clauses, in which employees, often as a result of collective bargaining, agree to resolve workplace disputes through arbitration rather than the public court system. While opponents of arbitration paint it as a nefarious process, there’s little reason to think employee claims are systematically being disadvantaged, with some studies even suggesting the opposite, finding that employees won higher awards more often.
But the bill doesn’t limit itself to claims of actual sexual assault or harassment. Intentionally loose language bans arbitration enforcement even for claims having nothing to do with sexual misconduct, as long as there is at least one claim of that nature in the case, creating an incentive to add a perfunctory harassment claim to virtually every workplace dispute.
This Act, as well as the lack of debate around it, demonstrate all too well the worrying trend: the issue of sexual assault has been politically weaponized and is wielded like a cudgel to sneak in worrying changes to the court system, whether it’s to arbitration or due process, that would not be tolerated in the name of any other crime.
The rights and procedures of our justice system protect all of us, not just those accused of sexual crimes and misconduct. To weaken and rearrange its protections on the basis of an emotional appeal does a disservice to everyone, and to victims, who must now watch their worst experiences used as totems to cover for political grandstanding, most of all.