Sexually Harassed Employees Urge Congress to End Arbitration Clauses

WASHINGTON — Sexual assault victims told a congressional panel Tuesday that arbitration clauses required by many employers in employment contracts create an incentive for more workers to be victimized.

The victims prefer that sexual harassment and assault claims be adjudicated in courts to ensure misdeeds of the assailants are publicly known.

Several women testified to the House Judiciary Committee about how high-powered male corporate supervisors harassed them but were allowed to continue their offensive behavior because arbitration agreements shielded them from taking responsibility for their actions.

Among the accusers was Eliza Dushku, an actress who was a co-star on the CBS television show “Bull,” a legal drama about psychologists who operate a jury consulting firm.

She said she was fired after complaining about sexual harassment by a man she did not name but described as “my co-star.”

Other media reports identified her alleged harasser as Michael Weatherly, the lead actor and a producer of the show.

Initially Dushku said she was thrilled about the opportunity to play a smart lawyer on the show after it debuted in 2016.

“However, in my first week in my new job, I found myself the brunt of crude sexualized, lewd verbal assaults,” Dushku said.

On a nearly daily basis, the co-star “would, in front of everyone, refer to me as ‘Legs,’ [and] he would smell me and leeringly look me up and down,” she said. “Off-script, in front of about a hundred crew and cast members, he said that he would take me to his ‘rape van’ and use lube and lots of ‘long phallic things’ on me or ‘take me over his knee and spank me like a little girl.’”

She tried to negotiate informally with the co-star to ask him to end the sexual harassment. 

“I was fired the next day,” said Dushku, who now is a 40-year-old mother of two children.

She said she filed a complaint with CBS about how she was treated on her job but found that her rights were limited by the arbitration agreement in her contract.

“For the next year, I found myself pitted against one of the most powerful media corporations in the world, CBS, with unlimited resources, which was controlled by the men who used the arbitration clause to protect themselves, their profitable show, and to silence me,” she said.

Eventually, she accepted a $9.5 million settlement from CBS that was made public when leaked to media publications.

Other women, such as Andowah Newton, told similar stories of predatory supervisors.

While working as an attorney for the French luxury products company LVMH, also known as Louis Vuitton, she said a supervisor leered at her openly before later assaulting her.

“It was persistent, disruptive and suffocating,” Newton said.

After her complaints led to arbitration, her employer demanded that she pay the company’s arbitration fees.

Another woman, Lora Henry, an Ohio automobile saleswoman, told about a supervisor who forced his way into her home to sexually harass her.

“This is not political; it is morality,” Henry said.

Lawmakers timed the hearing one day before the House Judiciary Committee votes on whether to approve a bill that would end the right of employers to require arbitration clauses in employment contracts if sexual assault and harassment are the disputed issues.

The bill, H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, also says the enforceability of arbitration agreements could be determined only by a court, rather than an arbitrator.

Some lawmakers endorsed the bill as a good way to discourage sexual harassment while others said it would limit legal remedies for employees.

If employees are required to sign arbitration clauses, they are “nearly guaranteed to fail” when they file complaints about sexual harassment, said Rep. Jerrold Nadler, chairman of the House Judiciary Committee.

In addition, non-disclosure requirements in the arbitration clauses mean that “98% of the time accusations of sexual assault will remain hidden forever,” Nadler said.

Republicans on the committee said arbitration offers flexibility, often resulting in faster dispute resolution and greater compensation for employees.

“Today, arbitration provides an alternative to the cumbersome and expensive process of a lawsuit,” said Rep. Jim Jordan.

Tom can be reached at [email protected]