>> the house committee on the judiciary will come to order chair is authorized . the house committee of the judiciary will come to order without objection. the chair is authorized to declare recessses of the committee at any time. we welcome everyone to this morning's hearing titled silence. how forced arbitration keeps victim of sexual violence in the shadows. before i begin, i would remind members we established a distribution list exhibiting written motions or materials and members might want to offer as part of our hearing today. if you'd like to submit materials, send them to the e-mail address distributed. we will circulate them to members of staff as quickly as possible. i would also remind members that guidance from the judicious states that face coverings are required at all meetings in closed space. such as committee hearings, except when you are recognized to speak. i recognize myself in opening statement. arbitration was originally developed as an alternative to the court system for parties relative to equal barring nipping power to enter into voluntary. in repeat decades, however, forces haved orbtration, which lacks many of the fundamental due progresses and transparency safe guards 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 renders our court system far for many. in the workplace, it's projected that by 202480% of private sector workers will be forced to sign an arbitration clause before accepting employment. a full 80% of our fellow citizens. consider that over the past five years, employers prevailed over their employees in 98.1% of these arbitration cases. somewhere in the paper, these workers were required to sign a system in which they are nearly guaranteed to fail and foreclose the possibility of ever having their day in court and nearly all of these instances, they gave up the right to talk about their experience. excuse me. now, it is easy to quantify the percentage of workers that give up their trial by jury in order to get a job. we can count the number of individuals who have no idea they have given it away until it is too late. but it is difficult to fathom the true human toll on forced arbitration. stories that cannot be distilled down to a number or statistic. that's why we're here today. to step back from the statistics and talk about a system that is fundamentally unjust. four witnesses are survivors of sexual harassment and sexual assault. we are here to listen to their stories. because they were forced in arbitration agreements as a condition of their employment, this is the first time many stories will be told in public. by forcing these women into silence, denying them their day in court, forced arbitration allowed toxic cultures to focus and predators to operate with impunity. for each survivor today, managing the thousands of schemes that worked. the employee that really needed that job scared into silence. the person forced to look for other work in another field after being fired for reporting sexual trauma. the colleagues who witnessed a co-worker fiefrd for fired for doing the right thing but cannot afford to make the same choice. the new employee will never know their boss is a predator, because everyone involved in the last incident must remain sigh leapt or lose their job. think of the employees in arbitration. think of the few who went against staggering odds. remember now the vast majority still cannot say anything about what they have endured. remember there are people that feel comfortable sexually arousing and stalking their colleagues, because they know they will never have to go to court orifice public pressure. remember that forced arbitration of sexual assault claims allows hundreds of companies to look the other way. because in a system that beevendz employees to secrecy forever, a company with a history of sexual assault claims against 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% 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 the victim pays its attorney fees. in this context, forced arbitration sounds repulsive. because it is. we have created a system which american companies are seemingly better off retaliating against victims of sexual assault than taking responsibility and holding the perpetrators to account. forced arbitration rocked people of sexual harassment and violence of their voice. the four victims are only here because a congressional subpoena has compelled their testimony. who ut that subpoena, they would still be unable to share their story. 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. when they had the opportunity to appear before congress in the front of the world, they came forward to give their testimony. this is true courage. this committee and the american people are grateful. these witnesses are not here for themselves. they're not here to restart their arbitrations. as much as we might like to do so, 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. 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 signed an arbitration clause on the first day, the new employee who might be the next victim of a pred core operating under protection of forced orbstration e trax. the survivors before us today were silenced by their forced ash clauses. they're here to show us where a world of actability might look like. i force all of you here today. now i recognize the ranking member of the judiciary committee, the gentleman from ohio, mr. jordan in his opening statement. >> excuse me, thank you, mr. chairman, for convening today's hearing. first i want to thank our witnesses for courageously agreeing to be here today. the district committee has charged with safe guarding america's most fundament am rights. we all know a right without a remedy is no right at all. we must make sure the pathways that americans have to resolve their disputes function properly and are fair to everyone. that is true for our court system and for other dispute resolution mechanisms like arbitration. in fact, congress enacted the federal arbitration act nearly a century ago. today arbitration provides an alternative to the cumbersome and expensive process of a civil lawsuit. arbitration is a process that should be as fair as court, also easier, more affordable and faster. going to court can be expensive on an average citizen, bringing suit, who has an army of attorneys. as we examine the benefits of arbitration and public forum, we should be careful not to phrase the question as arbitration versus jury trial in a court. over the last 90 years, the number of civil cases that reached conclusion through trial has declined substantial lip. in other words, if you are not in arbitration, it is highly likely your alternative is a protracted settlement negotiation involving major attorneys fees. we all understand the benefits that arbitration provides. however, if the arbitration system is not functioning properly and used to stifle individual rights, we have an obligation to fix it. any reforms must be done in the way to benefit the partys to the suit and advances the interests of fairness and justice. it would be wrong for us to make reforms that do not benefit the parties to the dispute rather than enrich the lawyers that take a major cut to damages awarded. finally, i would like to thank again automatic witnesses, particularly the witnesses who shared their person stories. thank you all for taking the time to be here today to better understand how our arbitration system needs to, who. thank you, mr. chairman. and i yield back. >> with that, opening statements will be included in the record. i will now introduce today's witnesses. eliza dutchku is an actor, producer, student and philanthropist. she has been a professional actress over 30 years and appeared in numerous television shows and independent films. today she is a masters degree candidate in the graduate program in greater boston. deanna is a first year law skunt at colombia law school. previously, she was a business analytics associate at affinity. she received her undergraduate degree in philosophy and classics from brown university. anna st. john is president and general counsel of the hamilton law student. hamilton-lincoln law institute. previously she quoted a judge on the fifth circuit court of appeals or an attorney with covington and bernie llp. miss st. john earned her law degree from colombia law school. him andrea newton is vice president for legal affairs in litigation in lbmh lewis hennessey, inc. before joining lbmh, that's easier, in 2015, misnewton litigated several years in private practice. misnewton began as a judicial clerk for the first vice president and now law school. sarah marshall perry is a legal fellow sent for legal introduction studies, at the institute of constitutional government at the heritage foundation. the previous positions include serving as senior counsel for the assistant secretary for human rights and education and senior fellow for education reform and the family research counsel. she earned a bachelor of science from liberty university and a law degree from the virginia university school of law. laura henry began a career in her dental field. she worked for 16 years and earned a degree from star state university. she then chose to leave the dental field in following the restaurant business. after nine years, she chose to switch careers and is a sales associate for wakeham mitsubishi in canton, ohio. miriam gillis served as a research chair in public law and professor of law at the benjamin cardozza school of law, from 2016 to 2018 and hosted as vice dean for academic affairs. professor gillis received a graduate and law degree from yale law school. we welcome our witness and thank them for participating. we ask our witness in person, rise and raise your right hand. i ask turn on the audio, make sure i can see your face. raise your right hand while i administer the oath. do you swear under the penalty of perjury the testimony you are about to give is true and correct to the best of your knowledge and belief, so help you god? let 'witnesses show the witnesses answered in the affirmative. thank you, please be seated. please note each of your written statements will be entered into the record in its entirety. accordingly, i ask you to ep could it to that time. you have one minute to conclude your testimony when it turns yellow. when it turns rerksd it's expired. for a witness appearing virtually. there is a timer on your screen. you may begin. >> thank you. good morning, chairman, nadler, members of the committee. ieliza dutchco, actress, producer, new mother of two, currently a graduate student in my hometown of boston. i worked in the entertainment industry from the time i was nine-years-old with numerous actors. more recently, as the lead in two network television series. i appreciate the opportunity to speak to you today about this important issue and will share my experience of the victim as survivor of sexual harassment in the workplace and as someone fired in silence when i attempted to address it. in 2017, i was aggressively pursued by cbs to become a co-lead in a show called "bull." i was told the role would be a six-year commitment to play a strong leading lady, a high powered lawyer meant to counterbalance the male lead and the role had been written specifically with me in mind. however on my first week, i felt myself the brunts of crude, verbal assaults, near constant sexual harassment from my co-star. this was beyond anything i had experienced in my third year of career. the male co-stars would refer to me as legs. he would smell me and look me up and down. off script, he once said he would take me to his rape van and use lewd and long falic things on me and take me over his knee and spank me like another girl. another time he told me his sperm were power. swimmers. these are a few xchlts these were not lines in the script. they were incessant, demeaning and directed to me in the middle of what was supposed to be a professional workplace. i tried to be professional and do my job but was relentlessly sexualized and mocked and laughed at. i felt this confusing shame over not being able to stick up for missile moore. i felt if i pushed back strongly, my job could be at risked or my professional reputation could be harmed. one day after a delivered a courtroom monologue i spent time rehearsing, he shouted out he and his buddies wanted to have a threesome and jousted peniss. a random male crew member saddled up and whis sperd. i'm a bull, i want to have a threesome with you too, eliz czar. i was horrified and became physically nauseous. i had been humiliated in front of 100 co-workers on the set and now a star and now it seemed it was open season for others to demean me sexually, too. my co-star's behavior continued an increased. it was intention am and mean and disempowering. it was awful. as vulnerable, i began to bore remi husband's sweat pants and wore big timberland boots at work to avoid more comments about my iappearance. over years, i have become accustomed to baventer on the set. this was very different. but thement-year contract i agreed to was a big deal and my drive to succeed was strong. i had received rave reviews from the show runner, the person in charge of the show and others at cbs. i loved the role that had been created for me. i spoke with my manager. we decided i would try to address the intolerable sexual harassment. i built a reputation and should be able to speak to my co-star as an equal. i specifically asked him to be my ally on set and town down the sex annualized comments especially since he set the tone in the workplace. admittedly i was nervous and asked if he'd work with me to rectify this. he responded in find shock. no one is more respectful of women than me. i grew up with sisters. what i found out later was that 40 minutes after this conversation, he texted the head of cbs studios that i had a museumor deficit and he didn't want me on the show. the cbs studio replied i was great and made the show better. i was fired the next day. the show runner told me straight up that after the next episode i would not be turning. he even suggested i ask cbs and stephen spielberg for my own show. because he thought my work was so impressive. now i worked as an actress sense i was a child and signed countless contracts negotiated on me behalf. i never understood that were mandatory clauses to use to what happened to me a secret and protect cbs and the sexual perpetrator who blatantly retaliated to me. i was shock to the learn i had signed away my rights to public forum before taking a job. who would think of a clause? who are these clauses meant to favor and protect? it suddenly became clear, not me. i ban the no understand how limited my options were to the legal retaliation i had experienced. in response to a letter from my counsel, cbs handed over hundreds of hours of tape, which included video of the actual harassment. it was captured verbatim on their tapes. no one other than my legal advisers have seen those taped. i was trapped in an arbitration clause i never knew i had signed. i was pitted against cbs, which was controlled by the men who used the arbitration clause to protect themselves, their profitable show and to silence me. to this day whenever my career, my life's work is referenced, my accomplishments as an actor are ignored. i have been reduced to being elies have a dushcofor allegedly harassed on a tv series. i hope you can understand this was not the outcome i desired or ever expected. because of binding arbitration, there will never be justice for me and countless other victims. lastly, there is an irony i fully understand. i'm getting to break that silence today. countless others bound by arbitration are not so fortunate. i offer my strength and solidarity to the great women two will speak today. we can help ends this. accountability and transparency around hard issue. s. thank you for hearing me and considering this important legislation. >> thank you. miswood. you are recognized five minutes. >> thank you, chairman. i first met the multi-millionaire founder of invisalign and founder of affinity when i was 12 or 13. he was a business associate of my father's. he would take our family out to dinner in town. my father owned affinity stock and believed he and my mother would retire comfortably from that stock. when i was in my senior year in college in december 2014, he was 43 at the time invited me on a ski trip. i was 21. i initially declined. he insisted he wanted me to meet his nephew who also studied philosophy. so i agreed. it later learned the nephew who never showed up didn't exist. the trip was designed to groom me. he told me he had feelings for me and showed me an extravagant life sometime. i rejected him then. nine month later agreed to date him. after spending time five times over ten weeks, i broke off the relationship. months later, he encouraged me to join his company. he presented a rosey picture of a great career opportunity. naively, i believed him. he assured me he did not expect a sexual relationship. in april of 2016, i signed a contract with affinity that included an arbitration agreement with a strong confidentiality clause. i did not know what that meant at the time. i was just excited and relieved to be making $60,000 a year. as it turned out, he was not willing to treat me like an employee. instead, over the next 18 months, he oscillated between pressuring me for sex and punishing me. when i rebuffed him, he humiliated me in front of co-workers and then ignored me completely, causing me to fear for my job. early in my employment, i declined to go to cuba with he and a friend. he was very angry and refused to speak to pr acknowledgment knowledge me 30r months. during a work meeting in dubai, he put his hands inside my pants and grabbed my butt in front of co-workers. no one took any reaction. during that trip, he did the same to a daughter he called a friend. the next morning she texted him she felt violated. she had asked him to stop many times and that he knew huh drunk she was. afin ditech e executives arranged for her to fly home early and later paid her a secret settlement. the company did nothing to protect other affinity women even me. he had gatherings in far flung locations, where heavy drinks was the norm. i never saw any company sexual harassment policy or training. when i ask the head of my office what i do. he suggested i avoid him. he made that impossible. as the ceo of the company, he had power over my life and career and i was anxious not to insult him or make him mad. i explained that i didn't want to have a sexual relationship with him in as many different ways as possible. i said it in kursk. but i also wrote it in texts and e-mails. i reminded him in almost every interaction he had. i told him his demands were causing me extreme stress and panic attacks as well as forcing to look for work elsewhere. he repeatedly got angry for rejecting his advances, such as wedge he wanted to buy me expensive clothes. he called me a bitch when i refused to hold his hand in front of co-workers. i wrote to him exthree times, you have behaved inappropriately with my explicit non-concept. i reminded him i had said to his face, this is not conceptual. i don't want this i told him these experiences were frightening, degrakd and embarrassing for me. i do not trust you when you are drunk. these experiences make me feel scared and apprehensive. instead of changing his behavior towards me, he became more hos time n. writing, he you leapt a needed to change my behavior. his suggestions became more and more violent. i summoned my courage and told him that his sexual demands made me fear i was going to lose my job and causing me to have panic attacks. in response, he sent me to two important graphing e-mails describing his rape fantasy, including raping my while having sex s. i was stunned and tried to avoid them n. brrksz i avoided as much as i kouchltd i was under increasing pressure. i began to worry that in addition to wanting sex. help wanted to hurt me and punish me for rejecting him. after my preparation, i attended dinner with he and colleagues. later that night, i went to the hotel bathroom and texted i was sick going back to my hotel. he replied he would meet me there. i said i was vomiting. i admitted i was still at his hotel. i felt completely trapped and hopeless. i was 23 and very far from home. i didn't want to lose my job. i didn't want him to get angrier. i didn't feel anyone could protect me and i was too tired and i went to his room, where he beat me having sex with me. i told him, he was hurting me. he said good. he told me i should have had sex when we first met at 13 years old. when i left, he said we should do this more often. i hid in my hotel room until the next day. my body was covered with scratches, cuts, contusions. i had bruises around my neck, which looked like i had been strangled. a large bump and the nurse at the hospital said i had a concussion. i recommend two photos of my neck and day that day at the end. >> without objection. >> thank you. as soon as my lawyers contacted affinity, he initiated an arbitration against me. he knew the secrecy of arbitration would protect him. nine month later to punish and scare me, he sued my father, who had quit the day i returned from brazil in secret arbitration. in may, 2019, the arbitraor in my case ruled i had been sexually harassed and assaulted by him. since then, his lawyers have tried to get me to vacate the arbitration award. in exchange for erasing the arbitration ruling. they offered to let me keep the money award, drop the claim against my father and give my father $1 million. they sued my father and then offered to give him $1 million if i erased the ruling, probably so affinity could hide it from his future victims and from potential shareholders if the company goes public. and it's still not over. my father's arbitration has been going on for three years and has already cost him tens of thousands of dollars in attorneys fees. the harassment and assault i endured were hard enough on my family. but we still managed the financial and emotional burdens of being sued by my abuser in secret arbitration. he still has power over me. he is a still able to frighten me. first arbitration is the reason he is able to carry out this ongoing campaign of retaliation against me, my family and probably other victims. today, as i speak here, i am afraid of the consequences for my family that will arise for my speaking out. i have ptsd. i have nightmares. i used to be a very social percent i no longer am. the person who changed my life forever continues to abuse me because forced arbitration gives him the power to do it in secret. >> are you finished? thank you, misst. john. you are recognized five minutes. >> chairman nadler, ranking members jordan, members of the committee. thank you for inviting me to appear today. it is my honor and privilege to be before you. in my few minutes, i'd like to discuss how arbitration can provide an alternative method of resolving disputes, by which parties can avoid the shortcomings and removing it as an option is not in the best interests of those subjected to sexual harassment and assault. studies show that arbitration provides a faster and less expensive way for employees and consumers to resolve their claims against their employers and other companies and to obtain greater relief on average than they received through litigation in court. arbitration tends to be more flexible. both in terms of the formality and scheduling the proceedings, making it easier for claimants to par sis pate. it involves discovery and less insurance to traditional rules, that may make litigation in court inaccessible and overly intimdakota. their organizations that support arbitration proceedings to provide uniformity and increase accessibility and fairness for claim apts, also hoping to lower the costs for employees bringing claims against their employers. employees may also realize secondary benefits from arbitration. because arbitration is a faster and less expensive way of resolving disputes, companies may have more fun to devote to employee benefits or to lowering costs for consumers. the judicial system, itself, including the u.s. supreme court has expressly recognized the benefits of arbitration and congress, of course, recognizes benefits as well in passing and maintaining the federal arbitration act which has been in place nearly 100 years. so when we talk about the problems with arbitration clauses, i think it's important to keep in mind arbitration is not necessarily a danger or impediment to those who have experienced sexual harassment or assault in the workplace or elsewhere. instead, it's worth considering taking away arbitration for these victims is a top down heavy-handed approach that denies them the advantages of arbitration as a means of adjudicating their claims. it's also worth keeping in mind an agreement to arbitrate does not impact a party's substantive claims. the claimant retains the same rights as she would in court, simply submits her claim to adjudication in a less formal setting. programs in recognition of this fact, courts allow parties to arbitrate even grave injuries, such as claims involving wrongful deaths. the court system is not necessarily the answer concerns about arbitration. overburdened courts are often slow moving. as a result, it is the attorneys who benefit from the prolonged resolution without any proportionate benefit to the victims. class actions do not provide a solution either. as sexual harassment and assault claims are too individualized for class treatment in any event class actions are slow moving and often disproportionately benefit the attorneys while inefficiently distributing relief to the victims. sexual harassment and assault victims may also prefer arbitration because it allows them to choose to keep the proceedings confidentially. unfortunately, these claims continue to often carry a stigma that victims may want to avoid to continue our day-to-day lives without suffering professional damage or negatively impacting their ability to earn a living. who ill the public nature of a hand. of high profile cases has hired a positive triple-down effect, the same is not going to be true for many more routine sexual harassment cases. these victims should not be forced to have their climbs adjudicated publicly. many would like to forego bringing claims at all if they cannot be handled privately, such as through arbitration. arbitration in itself is a process that would not prevent victims from reporting criminal conduct or the underlying facts of the dulaimi claims if they choose. confidenttially agreements ndas can be taking away the advantages that arbitration can provide. thank you. >> thank you, ms. newton. are you recognized for five minutes. >> h put on your mic. >> it's my first time. chairman nadler, ranking member jordan and distinguished members of the judiciary committee. thank you for inviting many ehere today. it is an immense honor. i am joined by my father, mother, two of my brother seated behind me. before i begin, i want to state that my remarks reflect my personal experience only and have not been made in any professional capacity. and i testify under subpoena issued to me by this committee. while my professional and academic profile may not fit the image of someone rendered powerless and treated inhumanely through forced orbtration, none of my achievements has protected me from the years of intense retaliation, dehumanization and degradation to which my employer lbmh has subjected me e. in december 2014, i was offered the position of director litigation for lbmh. the french conglomerate with brands like dior, fendi, given chi. i was ecstatic. it was my dream job. i attempted to negotiate several aspects of my employment grief. lbmh made it clear to aspect negotiable. i received reviews. my boss wrote the highest degree of honesty and ethics and handles all matters with a calm demeanor. i was soon promoted to vice president legal affairs. i was also being sexually harassed by the property and facility doorman, a white male about 30-years-older than me. he supervised a large staff, reported directly to an spv and reported to the doctor eo and the most upper circle. i barely knew him, he would lear by me, skimming the doorway. that escalate to him lurking directly outside my office for such excessive periods of time a colleague confronted him about it. at work gatherings, he pointedly leared at me and suddenly appeared near me. the fact that he oversaw security staff especially concerned me. i repeatedly rebuffed his advances that had no effect. one day he entered my office with the excuse of happening artwork. suddenly, he thrust his pelvic area in my chest. he penned his body on top of mine. i exclaimed in shock, trying to pull my body out from his. after i got up, he said he did nothing wrong. this left in many stress. i was sent out to the dean and i barricaded myself inside the office to try to feel safe. when he continued to lurk outside my office, i became anxious and stressed to the.that i had tremendous difficulty concentrateing on my work. it was persistent, disruptive and suffocating. you would think all you need to stop things is report it. i, too, thought that would end it. the opposite was true. i was about to receive a horrifying lesson on the power of forced arbitration. in the following days, lbmh ignored my reports and failed to do anything and instructed me to personally confront him, despite the concerns i expressed. the supervisors reported me for confronting him. then they investigated me. they disregarded my colleague's behavior who confronted him. company management went so far as to suggest i should apologize to him. ultimately, management blames me for misinterpreting the learings, constant attempts to be near me and the attempted assault calling it mere flirtation based on my misunderstanding of french culture, even as an american and i spent many years as you heard studying and living in perhaps the. they told me this is what executives do in a french company and justified his conduct because the general counsel felt as professional women there are certain things we have to put up with and sacrifices we have to make. after repeating they reversed course and paid for an outside investigator. she suggested i should be flattered by the harassment and asked me if i wanted to keep my job and warned i would look like a trouble maker and a son of a bitch, excuse my language. lbmh promoted lloyd and publicly announced his promotion to all employees at a company event. the investigator initially proposed the restraining order, after confirming, the final report was modified, emboldened, lloyd strutded outside the hallway more than ever. my boss began lowering my evaluation ratings and inserting snarky comments. she excluded me from high profile projects and would be keeping an eye on me. lbmh frooild filed a lawsuit, threatened my attorneys and jeopardizing my case, sorry, jeopardizing my career and my livelihood by seeking sanctions against me personally. the ceo e-mails all employees essentially calling me a liar, stating denying any retaliation and mischaracterizing the results. he pretended a new system solely suddenly had a secondary function of receiving sexual harassment reports from employees. lbmh repeated similar lines to the press in the court. in 2020, i had to be hospitalized twice likely triggered by the trauma and stress incessantly inflicted on me. my case is now in forced arbitration. i witnessed first hand some of the numerous ways that is bias and unjust against survivors. forced arbitration and power emboldened lbmh, gaslighting me referring to sexual assault were figurements of my imagination. i had to take unpaid medical leave this year due to personal attacks. by leveraging forced arbitration, lbmh potentially endangered other employees, they would permit a void and others like him to continue working there to this day. because of forced orbtration, confidential settlements, i may never know the extent to which he sexually harassed or assaulted others or if they retaliated against others as they did me. thank you for unsilenceing me today. you each stand in a position of far more privilege and power than post-americans could ever dream only i hope you use that position to protect us and your loved ones by ending forced arbitration. >> thank you, ms. perry. you are recognized for five minutes. >> good morning. chairman nadler, ranking member jordan, members of the committee. thank you for giving me the opportunity to appear before you today. i commend this committee for holding a hearing on an important topic. toot's hearing, is de ja vu all over again. since the 1980s, the progressive leadership of this and the upper chamber has sought to curtail the protections of the federal arbitration act through bills including the arbitration fairness act, arbitration fairness for student act. consumer mobile act. fairness in nursing home act. restore statutory rights, the forced arbitration and justice repeal act and many, many more. the faa, congress sought to redirect employment disputes away from congested court dockets and two experts in employment and labor law so congested are judicial delay is one of the largest problems in our entire legal system. many cases in the system take more than three years to reach resolution and every study has concluded that results in arbitration are far swifter than litigation. and time again, it's seen it to favor arb tragds and as clarified that arbitration may be applied to antidiscrimination provisions like title 7. routinely assumes that litigation and arbitration are equally acceptable methods for resolving dispute. itatau holds that only 1% ever go to friel. the basic premise of limiting legislation that arbitration is somehow unfair to or bad to employees or consumers is false. the evidence shows the opposite. empirical studies show they prevail at the same rate or more frequently, recover as much or more through arbitration as litigation and in a study of more than 100,000 cases, the case of employee plaintiffs in court, compared to arbitration, show that those arb traiting, generally acquire more. and authorized federal courts to vacate arbitration awards where there is evidence of partialality in the arbitrators. there are also remedies that exist in law to invalidate arb tragsz agreements, which protects employee claimants when the balance of power has been weighted against them. in a study performed by economics firm, micronomics, when totalling direct and indirect financial losses associated with choosing trial over arbitration, total losses between 2011 and 2015. and last and most important and confidential procedure from the sanitizing light of publicity. two distinct things. in the due process protocols says only the arbitrator has the authority to make appropriate findings to safeguard the confidentiality, unless the parties agree otherwise. this is a duty for the arb trarlt alone. in fact, neither the faa or arbitration act imposes any duty on the parties to an agreement. the arbitrator or arbitration administration and silent on the policy of the arbitration process. these are causes that appear on their own. while the public cannot attend hearings and an arbitrator cannot disclose information, the parties to the contract are under no such obligation unless they explicitly agree. even an arb traiting employment discrimination claims, an employee can disclose information obtained in the process and the amount of any reward unless they explicitly agreed to confidentiality provisions, they can report and disclose the disposition of their title 7 claims as well as harassment, retaliation and abuse claims. they can communicate with federal and state agencies and may file or pursue a claim in the public interest. we do not want to protect bad actors but these are two distinct realities. under u.s. law, arbitration is not really a confidential process. it's a private process and it's not that arbitration clauses are dangerous but perhaps that confidentiality provisions are. there is a culture of sexism, even preitation within the halls of power. the lair nassars, harry weinstein's of the world deserve to come to account. i commend the bravery of the women here today. they have for so many others like them simply by sharing their stories. the very premise of the hearing that arbitration keeps victims of sexual violence and harassment in the shadows, that's ultimately misguided. arbitration agreements are not mandatory. no one, and the supreme court has held, is forced to sign a contract. but curtailing access to arbitration would injure, in the end, the very people that congress has sought for nearly a century to protect. thank you. >> thank you, miss henry, you are recognized for five minutes. >> i want to begin by thanking the committee for the opportunity to share my story and for recognizing the ongoing harm that mandatory arbitration requirements have caused to me and countless women sexually harassed on their jobs. without the committee's request, no one would have heard my story, except for the one single arbitrator in the closed room with a couple of of attorneys. ium lora henry and this is nigh story. like many, i had a mess of papers in front of me and told to sign here, here, and here. just hr stuff, i was told. i did not know at the time i signed an arbitration agreement. my boss grabbed my but, pinched my nipples and repeatedly made comments about my body, including that he could see my vagina through my pants. he bragged about getting blow jobs from customer in exchange for gift gas cards. i hope we can all agree this is disgusting behavior. i wish it ended there, it did not. gentry showed up at my home with a bag of sex toys. i told my boss to get out of my house. he later offered to pay me for sex at work, like i was a who. when i told him no, he tried to put the money down my shirt. i felt disgusted alone and didn't know if this had happened to other women too? had other victims been silenced by the secret arbitration? i worried would i be fired? i dreaded going to work. every drive to work i thought well, what will he do today? i would worry about how he would react to my choice of clothing. do you know how mentally exhausting it is to be on guard every second for a hand that can come out of nowhere and pinch or grope? i worried that reporting the harassment would cost me my job. he's on local and social media. i, on the other hand, was just one of the many sales kpivls. then he appeared at my home again unannounced. he grabbed the door, and pushed his way in. said he had gifts for me. my heart sank. he pulled his pants down and stuck a large syringe into his peainous. it would help him get an erection, he told me. i screamed for him to get out of my house as loud as i could. that was it. i finally reported it, hoping i was wrong and my employer would do the right thing. unfortunately, everything i feared about reporting the sexual harassment came true. ganly kia conducted a sham of an investigation and said it was my fault. my fault? in what world is a woman to blame for a man showing up at her house with sex toys injecting his peinous? >> they knew no one, except an arbitrator, would hear their lame defense of a sexual predator. they involve their lawyers to protect the company and their star sexual predator, who they continue to but on the advertising. he and the dealership cut off my sales leads, which took away my sales and commissions. and when i still would not quit, they fired me. they just wanted me to shut up and go away. i believed if i stayed silent, he would be free to continue praying on women and ganly would allow it. i stomached all the courage i could and filed a lawsuit but they won because of the sign here, here, here and there arbitration agreement. you allow women like me to be silenced by arbitration. mike gentry will never have to stand in front of a jury and explain himself. i cannot tell you whether mike gentry has victimized other women. i cannot tell you whether the ganly dealerships have fired others who have complained and i cannot tell you whether they have systematically buried other allegations. i cannot tell you this because you've given ganly the right to keep all of this in the shadows of arbitration agreements buried in the hiring paperwork. what i can tell you is the cycle of sexual harassment will continue if you force women to be quiet and allow sexual harassers and the companies that hire them to hide behind arbitration agreements. this is my story and the story of countless other victims of sexual harassment and other unnecessary victims. do you want to force them to explain themselves in front of a jury or put the victims back in the silent box so people like gentry can keep being the face of ganly's advertising? this is not political. this is morality. do you side with the sexual predators or their victims? thank you. >> thank you, professor gilless, you are recognized for five minutes. >> chairman nadler, ranking member bach, distinguished members of the committee, i want to thank you for having me back to talk about the important issues. it's my privilege to be here and my sincere privilege to sit next to these brave women. i've been here before to talk to you about how terrible forced arbitration is. iable talked to you to try to get you to sign and enact and support a bill that would get rid of these pernishes clauses across the board for all employees and consumers. but that's not for today because today we don't all have to agree that it's terrible. across the board. it's terrible. but hopefully i can come back and try to persuade you of that on some other occasion. because today we're here to talk about hr, 454444 -- 4445, sorry. a bill that would prohibit employers from forcing victims into arbitration. three of the witnesses have already said this is not a partisan or political issue and i certainly hope that you're receptive to that very clear message. because the truth is i can't imagine, really i can't imagine how you could design a worse system for dealing with sexual harassment than forced arbitration. i mean, it's the worse possible regime. first, the entire regime is shrouded in secrecy. and not just because victims want to keep these issues confidential, which is up to them. they should have the autonomy and choice to decide. but because companies want to keep this stuff under wraps. they want to hide and shield sexual predators and don't want their business in the public eye. they don't want to deal with regulators or lawsuits. the secrecy here, on its own, makes this a terrible way to deal with sexual harassment because it means victims in the workplace, who bravely try to come forward are prohibited from telling their stories in a public forum. instead, they're forced into a private process where everything is under wraps and siloed. victims can join together, even when their injuries stem from the same wrong deeing, even when they're occurred at the hands of the same perpetrator, even when the company's tolerance for sexual harassment is structural and pervasive, they have to go into it alone, never knowing each other. i don't know where all the statistics are coming from about how great arbitration is and how everyone wins it. the truth is no one goes because they don't know what else is going on in the workplace. the secrecy prevents one victim from ever learning whether others, right in the cubical next to them, might have experienced the same tragedy and trauma. when survivors are in the dark about cases filed by others in the workplace, that makes coming forward, being the first person to come forward that much harder. as a corlair and this is an important corrilary, the relief available doesn't prevent the wrong doer from praying on other women. doesn't prevent the predator from having all sorts of misconduct against other women in the workplace. the proceed rgz one on one and the relief that arbitrators are allowed by contract to grant is individualized. they can't ever order any changes beyond what can help this one individual that happens to have the curage to come before them. can you imagine a worse system? because i can't. third, and i think this is really important and all the survivors have spoken about this. forced arbitration is a system where employers right the rules and pick the arb trl provider. which means victims are shunted into a regime stacked against them from the get go. first, because the arbitrators economic interest is to be very good to the repeat payer employer so they can be chosen for another arbitration next time. so, the repeat player problem has been well documented and i think it's alive and well in arb arbtration and the secrecy protects that. and secondly, because the employer designs the process t does so in the interest, not in the workers but in their interest. so, given all these things, given how bad the system is for victims of sexual harassment, it's no wonder so few choose to go to private arbitration. i wouldn't. it sounds terrible. the truth is we can't reform the system as ranking member jordan, i think, expressed in his opening. that maybe the system can be fixed. i challenge you to find a way to tathat because it's broken and doesn't work and moreover, none of the victims want it. so, you can't fix it if it doesn't work and i don't think it works. these victims deserve the right to deside for themselves where and how to file a case, free from retaliation for complaining about the treatment they've received in the workplace. they deserve to have you hear their stories. and to hold perpetrators and employers accountable for pervasive employer misconduct. none of this is possible in a system of forced arbitration. i encourage you to susport and enact this bill and happy to answer all of your questions. thank you. >> thank you for your testimony. we'll proceed under the five-minute rule for questions and i recognize myself for five minutes. first off, i want to thank all of you for coming before us for sharing such personal and dramatic performances today. your testimony will help save countless other women from being victimized in the future by sexual predators in the workforce. your attacker did not attempt to conseal his actions. he operated in broad daylight. you, on the other hand, were forced into a secret closed-door proceeding. prior to joining affinity, you had no idea if your employer acted like this towards anyone else in the company. do you believe arbitration endanger other women in similar situations? >> of course. even at affinity, i don't know whether there are women there who, like me, might think they are the only person this has happened to and like me, would have to wait months into an arbitration proceeding to learn there are other victims. >> miss henry, i'd like to ask you a similar question. your harasser also operated brazenly and without fear of repercussions. if anyone at the dealership before you was able to take your claims to court, do you think your attacker would have attacked you repeatedly after you had been hired? >> no, sir, i do not. i feel like i wouldn't be sitting here today if that would have happened previously and it was taken care of at that time. >> is newton and miss disco both, you both describe work environments in which senior management brushed aside the reports of the harassment you endured. in your view, how would prohibiting arbitration causes from sexual violence and harassment in the workplace protect from repeat offenders? >> i think it would send the message immediately that there's no tolerance for this in the court of law. they would know that going in. we cannot get away with this. right now they feel like it's open season. >> miss disco, what do you think? >> short answer is accountability. i think transparency and openness have to be a part of this because transparency makes the perpetrators and sexual huh rasment accountable. i think, in my situation, if people could have seen the tapes, accountability would have changed the outcome. >> thank you. professor gillis, with the time i have left, could you highlight the breadth of the forced arbitration's effect on sexual harassment cases. >> yeah, of course. it starts at the very beginning. a woman, a victim of sexual harassment tries to complain about her treatment and she doesn't get anywhere with hr. so, she files -- she tries to file a lawsuit. but as miss henry indicated earlier and i think her story is one of so many women, she learns upon speaking to a lieuier, reviewing a documents that she signed something somewhere she doesn't remember. none of us remember all the documents they giv us onorianation day. and in there is a forced arb tragds clause that says you've waved your right to a jury, you have to go into a private arbitration predesignated by the employer, who's retained that arbitration provider. so, you're not sure how fair the proceeding will be. in the apparent speed and cheapness, we get very, very streamline proceedings. so streamline that the rules of discovery and evidence and other procedural protections that would apply in court no longer apply. right off the bat, we're treating them as though they're second-class citizens. when an arbitration complaint is filed, it's in secret. the only entities that know it's been filed is the employer, the complaining employee and the arbitration entity, the triple a or one of the arbitration providers. contrast that with court. i can go down to the d.c. district court and file a complaint. that's on public record and so is the defendant's answer, motion to dis mis, they're public. litgations in a public court system has power and the power is the power of signaling. not only to the defendant but to similarly situated defendants that this is a wrong. she's told her story and she plans to prove it. none of that happens in arbitration. from the beginning it is private, in a secret location, no public, no press. arbitrators don't write decisions. there are only three states in the union that require minimal disclosure of arbitrations, pretty redacted and hard to read, if you're a researcher like i am about these issues. other than that, everything in arbitration is a black box. should we be surprised that women are feeling incredibly angry they don't get to tell their story, they don't get to know whether the place they choose to work is full of problems that they never learn about? this is overwhelmingly bad. this have, as i said in my opening remarks, the worst possible system one could design to deal with a problem of this nature. >> thank you. i would ask our witnesses to please put their masks on when they are not speaking. >> thank you, mr. chairman. and i also -- it's already been mentioned but i want to thank the witnesses for being here today as well. this is obviously not an easy thing to testify in public like this. and we certainly appreciate your bravery in doing this. and i think the behavior that's been discussed here is obviously outrageous and disgusting and most of the individuals you've been talking about on the other side ought to have, probably not only be sued or gone through arb arbtration or the case may be, behind bars. i think the behavior that's been discussed here is criminal. i know as time passes and we, as a society, become more educated about this and how often occurs, we take it more and more seriously as we ought to. again, thank you for being willing to be here today and to tell us about this. as i say most of these guys you're talking about ought to be in jail. now, that being said, obviously we've had federal arbitration and arbitration at the state level. it's been around for a long, long time. and it's one way to handle these types of things. not the only way. and there obviously, ought to be more thought given up front, i think, on both sides about these contracts. and it's disturbing that such little time is given for an individual like yourself, who's signing on at that employment early on as to what rights they may or may not be giving up. i think that's something else we need to take a strong look at is let's find out what people are signing. they tell you never sign anything unless you agree to fine print, whether you're purchasing a car, whatever the case may be. let's face it, they put stuff in front of us and we sign it. >> isn't the whole point that these women and other similar situations are given contracts to sign, here's your employment contract and you may not "x" out the arbitration clause. take it or leave it. >> reclaiming my time. i'm agreeing with that and i'm saying that's something we need to educate the public and all ought to be involved. yes, we've got democrats and republicans here. this is something we ought to be united on. there are men harass at the workplace. this is my 25th year in congress. we handle an awful lot of important issues. we've supported policies to protect individuals and assist individuals of sexual exploitation in the workplace or other places. i think this is a timely discussion of this. but i've talked much longer than i wanted. obviously, one -- the two rivaling principals here are getting justice, certainly, for the horrific thing this individual has undergone and doing it in a manner that, with all the lawsuits filed in the country, doing it in a timely way and doing it in a manner where you're going to get justice and i'd like to ask miss saint john, you mentioned a partial -- you had mentioned before about the time that you can get your case beforethem ajudicator person, which is a panel. each side picks one and those side pick another arbitrator. could you discuss that. you did somewhat in your testimony about the benefits of boeing that route and is there anything you would suggest in perhaps the discussion i mention about having people more educated up front when they sign employment agreements, that they're giving up their rights? >> i think thatsz right. not every employer has these mandatory arbitration agreements. i think if there are some willing to remove them or talk through them, that would be helpful. and arbitration does tend to be faster, cheaper, easier way of resolving disputes. and that may be a way that is more beneficial to victims of sexual harassment or any other workplace violation. >> thank you for that question, congressman. i would echo what miss st. john said. we need to refocus our analysis towards confidentiality and mdas. that is a particularly pernishes set up and five states have enacted legislation that indicates in certain claims under discrimination law, you may not use a confidentiality provision. so, you're automatically given the opportunity to go immediately public, even though you're still in the arbitration process. i think all there's much to be said for investigating how we can look at the confidentiality provisions when they accompany arbitration itself. >> thank you. yield back. >> gentleman yields. >> thank you. let me thank you all for your bravery and courage. i don't know how many words i can offer that would equate to what you have done, not just for the committee but for america today. each and every one of these persons in normal circumstances committed a crime should be tried and incarcerated. but here we are with a mystery. that most of you did not realize was part of your contract. that, in itself was not the american way. so, i do want you to feel that you have contributed to the further understanding and empowerment of lawmakers. to distinguish what arbitration may be a value for. and where it is wrong, ugly, and bad. quickly, you indicated in your testimony that there was another young woman who was harassed and assault on an international trip. do you believe he has a pattern of luring young woman out of the country and assaulting them, which changes the framework of your legal rights? >> i personally believe that. it's certainly -- there were a lot of similarities between what happened to me and the other young women who i learned about. but yeah, it's -- whatever his pattern is, it won't ever be revealed if he can always set the rules of dispute resolution with his employees. >> miss dursky, i'm horrified by what you had to experience and your professionalism demeaned. how did that make you feel? >> i was horrified. i was embarrassed. i was ashamed in some strange way. it was just incredibly demeaning. and as somebody who had spent my life and my career establishing myself as sort of this strong, outspoken woman, i felt it was intentionally directed at me to make me feel small. and unable to defend myself. >> almost taking your literal rights away, as an american. thank you for that. miss newton, do you have an impression that she felt responsible for doing due diligence? do they have authority to do what they spoke about -- >> i don't think they had any consideration at all. everything was done in a shotty manner with the intent of burying it. >> miss henry. do you think the actions of your perpetrators should have really put him into a criminal justice system? >> yes, ma'am, i do. it's just the way things are, it's just a big secret. they can pay some money to the victim and move on and not warn the next person that this may happen to. so, i -- yes, i don't feel like justice has been prevailed here at all. >> professor gillis, thank you for the research you've done. you've heard the pain of these women and i believe these allegations against purperators would throw them into criminal justice system. one incident happened out of the country. can you tell us how these incidents are, in fact, these policy with indication on imlications for justice in america? >> i think you're hearing the implications significantly of a group of incredibly strong women who were demeaned in the workplace. i think thlts that's injustice right there. i think it gets worse and worse. my colleagues on the right have argued that courts are too busy, dockets are too full and that's the reason to shunt them to arbitration, where can allegedly be dealt with cheaper, faster, easier. i want to point out they're not being dealt with at all. very few ever decide to go to arbitration. so, the company line that the chamber of commerce likes to feed some of us is false. and so, that means there's deep injustice and we have a two tier system. a cyst foreman companies who get to go to court and one for victims who are forced to go to arbitration. if there is a question whether court dockets are too full, then this body should appoint more judges. the way to deal with the problem is not to forcepeople in to a system they don't want, don't need and is deeply unfair, but is to appoint more judges. i think this is an important point and i'll be my last point. there's a deep problem and an injury that happens to the law itself when cases are not brought in public courts and are docked on the public system. we lose something. we lose something about what makes this country great, which is law. and law has to have people, inputs to move forward, develop, and evauvl. right now a lot of cases are not getting before judges. and what happens is law itself starts to stagnate. so, i think the harms are cascading. they're multiple, they're deep. and it's time to put them to an end. >> the young lady's time has expired. and regardless of the topic, i think you'll find bipartisan support for increasing the number of judges. >> we got a markup on this tomorrow. and it sounds like miss gillis is talking about the public and these individuals, who shared their story, that information going public. and you felt the answer to this, to protect the benefits of all is to deal with the nondisclosure and confidentiality. we're going to potentially pass this bill to the house floor and we'd like to do it right that's going to treat people through the terrible things they're having to do, and treat them the right way. >> i believe those provisions that attach so often are precisely the problem we're dealing with in the first place. the opportunity for individuals to truly understand that what they'll go through may not ever see the light of day. i wonder if there ought to be disclaimers we investigate that if those particular claims are given an opportunity to be arb traited, like any other in employment and labor, that there is attaching language saying we will not utilize nondiscrimination or nondisclosure agreements so that immediately upon entering arbitration, the process itself is not private, isn't kept behind closed doors and there are protections that make note of the fact that there are no confidentiality provisions. the goal being to protect prievlacy during negotiations but it will be long before those individuals and their claims see the light of day. i think confidentiality is an issue. >> i'm going to yield to the congressman or attorney general of texas. >> thank you. sorry for not knowing but your attacker, he ever face criminal consequences? >> no. as far as i know, he's still the ceo of his company. i -- yeah, in fact, i'm very much afraid of what will happen after this hearing. >> that could well be a crime if some retaliation is brought to bear against you. and now that you are public, please don't keep future crimes private. and you know, you're out there, might as well follow up. the law and order side of me says somebody that attacks anybody like you were attacked, needs to be responsible to criminal justice system. not just keep it private but it needs to be dealt with in a criminal court. and i also wonder if that might be something, whether it's sexual assault, anybody that has a crime committed against them shouldn't be limited to arbitration. it looks like you ought to be able to pursue that and perhaps -- and miss gillis, i understand what you're saying but as a prosecutor and as a judge, sometimes we have women that really don't want to come forward. and -- >> then they shouldn't. >> but we're on the same page. i just think they should center a choice. but they shouldn't be forced into a system they don't want. >> and just because somebody is part of a labor union, doesn't mean they should be forced into arbitration either, right? >> we're not here to talk about labor unions. that's a whole other hearing. >> that's an exception. >> exception to what? >> they'll be able to negauche yalt arbitration agreements. so, it is something to discuss but you may not want to discuss it. miss st. john, how do you feel about exempting out agreements made by labor unions from whatever law gets passed? >> i think it's inconsistent with the principals involved. frirts okay for some claims, it should be okay for all claims. same with whatever process is available. it shouldn't be restricted based on whether or not they're in a union. >> i can say with a sexual assault, the need to give that choice to the victim. after it happens and not agreeing before it happens. i appreciate all of you being here, your sensitivity and we'll look forward to dealing with this as a legislative matter. thank you. i yield back. >> gentleman yields back. mr. johnson. >> thank you. mr. chairman. miss perry, i have legislation that would expand the united states district courts by creating 203 additional judgeships. do you believe that would create efficiencies that would enable more women to be able to bring cases of sexual assault in a court of law instead of in arbitration? >> congressman, i think my primary concern would be filling the vacancies we currently have and until we get that figured out, i'm not in favor of expanding a judiciary. i think that's a problematic avenue to pursue. >> if we could fill the vacancies though, it would be great for justice in america, isn't that correct? >> if we could fill the vacancies, yes, absolutely. >> you've given up on the senate being able to confirm judges? >> i have not. i feel the senate is capable of following edicts but before we go adding judges, let's fill the vacancies we have first. >> the incident that you told us about that gave rise to the pictures that you have submitted into the record, that incident took place beyond the shores of america. is that not correct? >> that's right. and multiple times that i was assaulted, it was on international trips. >> probably to keep you from being able to file a criminal action against mr. trisy or christy, correct? >> perhaps. >> and professor giles, we've got this nasty little thing called amendment -- amendment 7 to the bill of rights. can you talk to us about how important the seventh amendment is to the freedoms that were guaranteed to individuals under the bill of rights. >> i can. you know, the seventh amendment right is so fundamental. i teach law school and right now i'm teaching civil procedure. our entire course really focuses on this moment when we're going to get to jury. we talk about pleadings and discovery and pretrial process. but the idea that the jury is going to be the final determner. very few cases end up in juries anymore, less than 2% by recent numbers. and representative jordan mentioned how few cases get to a jury. but that's still our idealized vision of justice. so, the idea that someone would wave a seventh amendment right in a contract where you're not reading or understanding the fine print and despite these discussions about disclosures or disclaimers, when you first get a job and the packet of material, you're so excited to start the job. i'd sign just about anything because that's the job i want. >> and that's why we call it forced arbitration. >> that's why we call it forced arbitration. and no disclaimer in the world will make me sufficiently worried about the rightsyism giving up. i'm not thinking about the end of the relationship yet. >> a power despairative between the employer and the perspective employee. do they have a choice? >> no, that's why it's called forced arbitration. >> and we've heard questions or insinuations that location for arbitration proceedings are not secret. can you shed light on that. >> i can't because they are a secret. >> there's no notice? >> there's no notice. they're not publicly docketed. the public, the press, none of these documents is available for any publicity. and as -- >> let me interrupt. how does the secret play into the serial offenders? the predators that keep doing this time after time? how does secrecy enable them to do that? >> dauz fwauz enables employers to shield them from publicity. right there, are still ceos of companies, head of fox news for years and years and they engage in this activity. they're serial sexual predators in the workplace and because each arbitration is private, nobody knows about the past issue and so new women join these companies and they have no idea what's been going on. it takes a lot for the women to finally come forward, as we're seeing today. >> so many broken lives. but you ladies, that have appeared today, have shared your life story with us. bravery. tenacity, survival. you are wonderful people. i'm sorry that you went through what you had to go through. but i appreciate you all coming and sharing your story today so we can hear. >> gentleman yields back. >> i'm going to start off with a question, hopefully i can get a hand raised if it's yes. would all five/six, including a remote visitor, witness, would all six of you -- i cont gaut my count wrong. would all 7 of you agree that in fact, if nondisclosures were taken out of the binding arbitration process in the case of assaults, that this would be an improvement in the status quo? those who agree raise your hand. i get three out of seven. so, let me just ask you. now yours is a case of a criminal attack outside the united states and you were not bound by a nondisclosure because you didn't go through the process. is that correct? >> i had a nondisclosure in my original employment process. >> did you go through binding arbitration? >> yes. >> and they compensated you in some way and this were bound by a nondisclosure. >> i was bound before i got to arbitration and i was compensated because i won my arbitration, which is so unusual because it's so -- >> i want to go through. why is it you think that taking that out wouldn't be an improvement? >> because secrecy isn't the only problem. it's also very unfair. >> i understand you want more. but i want an answer to, i think the r, a deliberative part of the process and a victim is the best person to ask. if you had been able to tell your story, not bound by nondisclosure would that have been better than being bound by one? that was the only question. >> it just sounds like i'm being offered a half measure and the forced arbitration is so unfair -- >> i understand you think forced arbitration is unfair. that's great. most of the people on that side want to eliminate it for everything. >> will the gentleman yield for a question? >> i will not. the reality is your side has been running over by a minute and i'll be given the same opportunity. down the two witnesses on the left. you raised your hand and said yes, that getting rid of that would be helpful. in a sense, doesn't that eliminate the -- what we heard in testimony as to the actual injury? almost -- i think everyone of the witnesses was talking about the effects of secrecy and not of the actual binding arbitration. >> i would agree with you. i believe if we're going to institute piece meal separationess, which is another attempt to eviserate the faa, which has been uphold as being good as litigation, in this particular instance. if we're talking about sexual harassment and assault and confidentiality is the primary concern, i would think language like that would solve the problem. >> that's what i had and was asking. it puts a definition of sexual harassment. is there a definition similar to this as far as you know then statute today that defines sexual harassment in the way this one is defining it? >> no, there is not. >> so, this would be a new law that defines sexual harassment, at least in the workplace in a brand new way with a single hearing? >> correct. >> the second is a big one for me. under hippa, you can't talk about something that happens to somebody medically, but if someone is raped, you can report it as a crime. if you're a health care professional, you're required to. should we, with this power, make it to where the arbitrator or anyone else that becomes aware of the allegation of a crime, which is credible, be required to report it? and would that too eliminate some of what i think we heard today validly as a problem with binding arb tragsz? >> absolutely. they're supposed to implicitly protect the privacy of negotiations but when a crime has been committed they ought to have report it. >> was that arbitrator wrong in not reporting that crime? >> absolutely. >> thank you plrks chairman. i yield back. >> gentleman yields back. mr. celine y is recognized. >> i wanted to begin by thanking the four survivors who have come forward to share their stories to the committee. i know this is not easy but i hope you know your testimony will help us move forward with legislation to fix this problem. hearing those experiences was painful to listen to. i can't imagine what it was like to experience them. they're horrific and i'm in awe of your courage being here and sharing your stories. so, thank you for that. a yes or no question. miss perry made it seem like the forced arbitration clauses are so great. everyone wants them. if that were true, they wouldn't be called forced orbtration and you would all know about it and be asking for it. but that's not the truth at all. so, my question for the survivors, did your employer at any . point out what was in your contract with respect to forcesed arbitration? >> no. miss newton? >> no. >> miss henry? >> no. >> and miss. >> no. >> so, in each of these cases, you had provisions that the employer made no effort to make you understand you're giving up a very important right to have claims heard. if you could just speak a little about what the effects of your experience were -- your inability to speak about what happened to you, how did that play out on the set where you worked? and how did it effect you in your life, both profession and in your personal life? >> i would say that, you know, the same sun lite is the best disinfectant. the ability to name something sort of increasesthal gaslighting around did this happen? was this appropriate? not appropriate? taking away our ability to share with our peers or our team or the systems and people that are supposed to be protecting us. what i've learned from my experience and graduate studies around trauma and healing. we're as sick as our secrets. the original offense of the crime and to add the silencing on top of it, it kills your spirit and it takes your dignity. as i've said, as somebody known to be outspoken and speak up for others in the face of adversity, i can't describe what the last four years have felt like to get nervous to go to a family dinner and speak a sibling about what i experienced. the silence keeps us sick as a society and our overall culture. >> thank you. miss newton, you described how 350e67al at louis vuitton attempted to brush aside what you experienced. do you think that contributed to the culture where victims are silenced. and what role do they play in individuals not knowing they're going to be held accountable in a meaningful way? >> when i first went to my colleague, because i'm part of the legal team myself, and told him about what was happening, it was ignored. when i became insistent about it, i was told i'm not hr so i can't report this. when things escalated and i told my boss, the general counsel, this isn't being handled properly and it needs to be, she asked me have i done something to wrong you? in other words i was reporting this in order to bother her. it was a bother, a disturbance. if i, as an attorney, within this company was shuned, dismissed and told you're a nuisance to us by raising these claims of sexual harassment, i can't imagine what the marketing manager goes through, the intern goes through, someone else. it create as culture of don't bring this to us, we don't want to hear it or deal with it. >> and i want to say in closing, the suggestion that we should wait until these incidents rise to the level of crimes that people just report the crime as if that's a solution, it may not in fact rise to a level of a crime that they should be protected against in the workplace. this is despicable behavior. and that we allow them to get away with it by forced arbitration clause, they should be ashamed. and we're going to fix this tomorrow. >> you mentioned in your testimony it was progressive leadership in the houses and senate pursuing the changes to arbitration. i would note for the record they are not alone. no one's confused me for a progressive and i'm a proud republican lead on the legislation to reform the practices. i don't think is a something we should view through traditional ideology. you said in arbitration the amounts awarded were double that of the traditional litigation process. what that study? >> excuse me. that's a study by mdp analytics. and they approached an analysis of 100,000 cases. and that was a study that was done -- >> did it also -- >> in 2004. >> did it analyze win rate or just the amount awarded? >> i don't know. i would have to go back and look at the study. >> i think that's -- i think you could be misleading to cite just the amount awarded in absence of looking at the win rate. and so i did a little research on that subject that postdates the research you have cited, and mr. chairman, i seek unanimous consent to enter into the record a study by the economic policy institute, december 2015 entitled the arbitration epidemic. >> without objection. >> i'll just use my time to analyze that point of win rates. this is quoting from the study. employee win rates in mandatory arbitration are much lower than in either federal court or state court, with employees in mandatory arbitration winning only about a fifth of the time which is 59% as often as in federal courts and only 38% as often as in state courts. differences in damages awarded are even greater. with the median typical award in mandatory arbitration being only 21% of the median award in federal courts. and 43% of the median award in state courts. the most comprehensive comparison comes when we look at the mean or average amount recovered in damages across all cases. including those in which the employee loses and zero damages are awarded. when we make this comparison, we find that the average outcome in mandatory arbitration is only 16% of that in federal courts and 7% of that in state courts. mandatory arbitration is massively less favorable to employees than are the courts. are you persuaded that this evidence that postdates your study might inform on that analysis? >> it may. i am aware of the epi study, that was a 2018 study. i'm also aware that there are connections between trial lawyers and the plaintiffs bar and epi, who are themselves incentivized to make sure cases are -- >> very important point, are there connections between them and the business community. >> there may be. >> eliza, i wanted to turn my remaining time to you. i heard a colleague sharing a story of someone coming to them who took a job that was also an on-camera job and that person was harassed and forced into arbitration and had a negative consequence there, deprived of their day in court, and my colleague in congress asked that person who visited with them, would you have done it again? would you have taken the job and would you have signed that mandatory arbitration clause knowing what could happen? upon reflection, that woman said to my colleague, you know what, i wanted the job so bad, i craved this opportunity. it was my break in life. even though i was mistreated, even though i was harassed and abused, i would probably do it again. and hearing that was heartbreaking to me, that in our country, we would create conditions that force anyone into a circumstance like that, looking at the opportunity you had, that most people would do just about anything on the planet earth for, would you do it again? >> no. i can't unknow what i now have come to know. and so as far as my career since then, i have chosen not to act professionally or in any other way because i would never sign away my rights again, and my understanding is that these provisions are part of most hollywood contracts at every major studio. they're a take it or leave it deal, and there's no price for my dignity and my rights. >> just, i really appreciate that perspective. but it seems like such an abhorrent choice to put to anyone in the american workforce. you basically have to accept this contract or you have to deprive yourself of the most meaningful contribution you can make to the workforce and to the country. i thank the chairman and i yield back. >> ms. bass. >> thank you, mr. chairman. and let me just take a minute to thank the witnesses for being here. i can only imagine how difficult it is for you to share your stories, but just want you to know how important it is that you have had your day, but also to educate us. i wanted to ask professor gilles several questions. i wanted to know if she could explain how the power dynamic between a prospective employer and an employee affect the validity of the arbitration clause in an employment contract. put another way, what makes it forced? one more question to you. many americans don't know what arbitration is, and many litigants have no idea they have signed an arbitration clause. how does this use of fine print and opaque wording add to the coercive nature of many employment arbitrations? >> thank you. i'm happy to answer those questions. so first, on the power dynamics which we have talked about a little bit already at today's hearing, i think, and frankly, representative gaetz just put it really well. i think the truth is that we want the job. we want the opportunity so badly that we are willing to sign away a lot of things in order to have that opportunity. and to assume at the start of a relationship that everything will go pretty well. so i think the power dynamic exists. i think it's a structural imbalance that is always true in employment, and i think employers are taking advantage of that structural imbalance by forcing their employees into arbitration. and on your second question, which is very related, i don't know if you have read an arbitration clause. i will try to send one so you all have one in the record. they are incredibly opaque, even as a lawyer, i read them and i have to reread them and reread them again to understand exactly what it is they're trying to do. but maybe employers shouldn't be blamed for how opaque they are, because after all, what they're trying to do is rewrite an entire procedural system because they're foregoing the procedural system we have already established in our courts. and doing that takes a whole lot of time and energy, especially if you're just trying to maximize your interests. these are really opaque and difficult to read. they often take pages and pages to describe. and i think most people don't read them or certainly don't understand them if they try to read them. so all of this is, i think, part of the problem. >> well, actually, can you take a few minutes to walk us through the history of arbitration in employment contracts and why has this practice been allowed to continue? >> thank you so much for that question because i have been hearing in thes today that are making my blood boil a little bit. the faa was enacted in 1925, but it was enacted so that sophisticated business people could negotiate for arbitration provisions and those provisions would be respected by courts. it was never intended to be imposed via standard form contract. in fact, if you read the legislative history, if you read the legislation, it accepts and exempts employees. so the idea that the faa applies to employees is something that was created by conservative majority of the supreme court in 1991 in a case called circuit city. i'm sorry, first was gillmer and then circuit city. i can't keep all the bad cases straight, and those are the cases in which the court interpreted, i would say misinterpreted the faa to apply to employees like this, so now employers can just stick these clau clauses into applications. that was not what the 1925 congress intended. they would be rolling in their graves. this is not what they intended. this is what the supreme court intent on protecting corporations intended beginning of the 1990s. so all i can tell you, representative, is that from the 1990s until now, we just had worse and worse opinions. in 2018, the supreme court decided a case called epic systems where it basically threw the nlra under the bus and said the forced faa is more important than the right to collective action under the national labor relations act. later in lamps v. burrella, the court helped out an employer who apparently couldn't write a cogent arbitration clause. they said, hey, we got what you meant, you meant your employees can't bring class actions. they rewrote the action. they will do anything to enforce these arbitration clauses because it protects big business. but i think that that's not what this body should be doing. this body should be protecting these women and other women like them. thank you. >> thank you. my time has expired. >> the gentlelady's time has expired. at this time, the committee will take a very brief five-minute recess. committee will come to order. this time, i recognize mr. biggs for five minutes. >> thank you, mr. chairman. appreciate every one of our witnesses being here today. and for some of you, it cant be a real easy experience, and i appreciate your willingness to be here and share your experiences with us. i'm sincerely trying to understand this bill and whether it's the appropriate measure or whether it could be better or how to design it and so my questions are meant sincerely trying to get a handle on this. i was a litigator. and i tried lots and lots and lots of cases. and everything from arbitration to jury trials at every level. so i have a lot of experience in this area, and so i have broken this down in my own mind, and i think mr. issa was trying to get there, but i'm trying to make sure i understand there's three aspects to this, this bill that i think are interesting to me. number one, is the nature of arbitration in and of itself. my experience as an arbitrator was it's a very small sample size, but it was very unsatisfactory as an arbitrator. there was pressure on me as an arbitrator from the side that appointed me. and that was very, very uncomfortable for me. but on other cases where i was the attorney representing a plaintiff before the arbitrator, in some cases it was extremely -- it was quick. it was short. it was easier. it was faster, and our reward was better than we had anticipated. so the question, of course, is the arbitration itself, is that really the issue? the forced aspect of this, the contract of adhesion aspect, that seems to be a huge problem here. i'm a big advocate for -- i hate to be forced to do anything. and i hate for people to be forced to do things. so this contract of adhesion type of aspect is really disturbing to me. and yet at the same time, i'm a big believer that people should be allowed to enter into contracts but i also understand there's a power discrepancy. we're trying to resolve that issue here as well. and then the third thing for me is the transparency or lack of transparency or the nondiscloser or the secretive nature of these types of arbitrations. and so i think mr. issa was trying to get at, and i don't want to steal what he was doing, this notion of if you had transparency, if this were open and notorious and you could bring it forward, would that resolve some of the problems? i think you all said yes. i think professor gilles, you indicated it might be helpful -- you don't think transparency would be? >> i think that the issue is that you're trying to fix a system by making it as close to court as possible, and i guess i'm wondering why don't we just let these women go to court? i don't understand -- >> so, don't get ahead of me. i'm trying to understand the three components i have raised here. >> right. but you're saying that if we could make everything transparent. maybe -- >> i'm not saying that. i'm saying would transparency improve -- >> transparency of what? >> the arbitration itself? >> the entire thing. from the filing of the complaint through the arbitration, through the award, the appellate process, and the confirmation in court. all of it should be transparent. >> right. >> i have to ask you respectively, what's the difference between that and court? >> first of all, the difference is, i'm sure you have litigated cases. it's huge. >> okay. you know, the thing is -- >> a case in an article iii court can take boundless amounts of time, moundless amounts of discovery. you have discovery in arbitration, but it moves so much quicker. it really does. that's been my experience. so when i'm talking about transparency and you're saying you're building a whole new system, that whole new system has been in place for 100 years. >> in place for 100 years for big commercial sophisticated companies. when you were an attorney arbitrating your case, answer me this, weren't you representing a company arbitrating against another individual. >> no, individuals against individuals. in my home state, that's not an unusual thing. >> uh-huh. >> that's my point. that's my point. and now, dang it, we have taken too much time just getting to that. i'm trying to understand bit and bit and bit, how we can improve a system so we protect victims because no one should have to make the decision -- i agree with representative gaetz, no one should have to make the decision about whether you're going to be compelled to find a certain dispute resolution or take the job of your dreams. i mean, that really is what i'm trying to get at, and i think there was some kind of defensiveness on your part, and it's unfortunate because i really wanted to understand the transparency part. >> the gentleman yields back. mr. cohen. >> thank you, mr. chairman. i appreciate your holding this hearing today. i'm sorry i was late but my car did not start. it does that on occasion. i thank you and all the witnesses for being here and testifying before the committee. personal difficulty, but i appreciate your willingness to come forth and put color on this issue. it's truly sad that we have to even have a hearing, arbitration is an issue that has come before this committee in other instances, and i'm against forced arbitration, but i can understand it in certain issues. but when you have forced arbitration where you have to deal with forced actions by your employer on you, and then you have forced arbitration, that's what they call a hat on a hat. you know, you don't do a hat on a hat. it's doubly bad. so i appreciate your being here. today's witnesses and countless others have been sexually harassed by people who thought they could get away with it, because they were the boss. the boss gets whatever the boss wants. and especially if they have forced arbitration. they know about it, sometimes you don't because you don't get into the contract. you want the job. you dent get into the nitty-gritty and the details and you have no chose. it's an adhesion contract. you get the job or you don't. you take it and expect you're not going to have that kind of contact anyway so it's no big deal. then you have the contract. they know they have the forced arbitration, so they feel comfortable harassing you because they know that they have got this forced arbitration and they're going to come out the winner. they got the deck stacked in their favor. professor, is it gilles? >> gilles. >> okay. structure of forced arbitration allowed perpetrators to operate this way. could you walk through the difference between a preliminary system, you may have done this while i was under my hood, and forced arbitration? >> i'm sorry, i didn't hear the question. >> the primary difference between the primary legal system -- >> yeah, totally fine. in a traditional legal system, i go to court, and i file a complaint, which is immediately publicly docketed, meaning i can search for it. it is a public document that other people in my workplace can read and learn about the allegations that i have made against an attacker or perpetrator or the employer. all subsequent briefings and other filings are publicly docketed. the hearings before the court are -- the public is welcome. the press is welcome. and that kind of transparency i think eliza called it sunshine is the best disinfectant, that's what our legal system is based ob. we don't have many closed door judicial proceedings because we believe the best way to get justice is to make sure that everybody is watching. and i think in this space in particular, people have to be watching, employers have to know there will be consequences if they don't deal with toxic corporate culture. >> and forced arbitration, it's not necessarily in the open. it's private. kept under covers. >> yep. >> protects the violator. >> no written decisions. arbitrator is not able to offer relief beyond, you know, to deal with structural or pervasive problems. >> how is this structure impacted the success or lack of success of claims brought by victims of sexual assault? >> first of all, the structure almost guarantees that very few victims will ever come forward. i think we're seeing a few very, very brave women who were able to come forward and go through arbitration. but because you have to arbitrate individually, and because you have to play by the ruls that the employer has written, lots of people feel the game is rigged before they even start. >> right. who picked the arbitrator? are the arbitrators generally folks that have a record of being favorable toward business? >> well, so just to segregate the question, the employer predesignates the arbitration provider. saying jams or some other group, and the entities may pick the arbitrator, but here's the problem. if i'm an individual employee trying to arbitrate against my employer, i don't know who those arbitrators are. i get a list of names. i don't know who they are. whereas the employer definitely knows who they are because they are repeat players in the system. >> somehow it works out, according to my information, that the last five years only 1.9% of victims have won their arbitration cases against their employer. >> yes. >> that's worse than congress getting subpoenas enforced against the trump administration. bad numbers. it's just amazing to me we even have to have this hearing, it shouldn't be permitted in these types of cases, the person uses their power to try to bring pressure to get sexually harassed or assault and they get to have a system in their favor where it's a 50-1 shot to win. absurd. thanks all for testifying. i appreciate it. i yield back the balance of my time. >> the gentleman yields back. mr. raskin. >> thank you very much, mr. chairman. in the united states, in the 21st century, the power that you have as a private boss does not include the right to sexually harass or stalk or grope or molest or rape your female employees. a private corporation is not a royal monarchy, not a totalitarian government, not a mafia state. a private corporation exists because it gets a charter from the state. it's governed by the constitution of the united states and federal law, including title vii which defines sexual harassment as sex discrimination. these four citizens of quite breath taking strength and courage have ripped the mask off the continuing regime of sexual harassment and sexual assault by male bosses in certain corporate workplaces who operate with impunity and brazen contempt for the rule of law in our country. this regime is made possible by the pervasive corporate nullification of a constitutional right, specifically the seventh amendment, which states that the right of trial by jury shall be preserved. i would like to ask our witnesses whether you think you lost something by the destruction of the constitutional right of jury trial and what you think might have happened if you had gotten a jury trial? and i wonder if you could just speak briefly because i have one other thing i would like to ask ms. newton. ms. spottiswoode. >> i absolutely feel like i lost something. a jury of my peers, full discovery, production of witnesses who weren't able to -- my employer didn't produce. and just having the rules of civil procedure, which were designed to protect people like me. >> what an excellent answer. thank you. ms. newton, i'm going to come back to you in a second. ms. henry. >> yes, it angers me that somebody in this position, mike gentry, who never has to go in front of a jury and explain his actions and why he did what he did or even, you know, i feel like i'm not getting -- it's not fair to me as the victim. so yes, i would like to see someone like this have to go in front of a jury. >> you think there's some wisdom in what the framers of our constitution put in our constitution? >> absolutely. >> thank you very much. mr. dushku, what about you? >> thank you. again, i think accountability and transparency, you know, the people who harass and assault have to become accountable to the public, to others aside from just those who were involved in the case. and that's accountability, i think, is the only thing that changes behavior. >> awesome, thank you. ms. newton, you got glowing accolades and perfect evaluations from your boss who was the general counsel of los vuitton. he wrote you reflect the highest degree of honestly and ethics in all that you do and you achieve excellent results and you're a client's dream. you were promoted to vice president of legal affairs, is that right? >> yes, that's correct. >> okay, then you were sexually harassed in the most grotesque and terrifying ways. when you reported it, you suddenly became the victim of what you call a campaign of retaliation and intimidation by the company, which was insulated by the forced arbitration agreement and felt it could cover up everything. now, amazingly, if i'm reading your testimony right, you're being sued for their attorney fees. and let me see if i can recap this. they moved to compel arbitration. you defended against that based on the new york state law which said that those forced arbitration agreements are no good in new york law. you won at the district court level, but then the appeals court essentially changed the result by saying it's not retroactive to cases of sexual harassment that took place before the state legislature acted. now they're coming after you for attorneys fees, this $330 billion company with $60 billion in annual profits which whose employee subjected you to really vicious sexual harassment and assault, they want you to pay them how much money? >> i don't know the exact amount, but i presume it's about half a million dollars. >> and amazing to me along the way, louis vuitton tried to displace responsibility that they have as a corporation operating in new york state, in the united states, by saying there was a difference between american and french culture which is a great insult to the french, especially because your harasser was american, right? >> yes, and when i worked in france, i was never sexually harassed or assaulted in france. >> they are just adding insult to injury at every turn here. i would hope they're not stating that's french culture because i know sexual harassment is against the law in france as well. i want to thank mr. gaetz for supporting the legislation against forced arbitration. this is not a partisan problem. the divide here is between those who think that corporate contracts can override the constitution of the united states and federal law and those of us who want to stand up for every citizen's right to go to work in dignity, free from assault and harassment. so i support this legislation very strongly. i want to thank these remarkable witnesses for their courage. it's amazing to me that two of you are lawyers, which i think just reflects the extent of this problem of forced arbitration agreements stuck into these contracts. and if anybody might have caught it and been able to stop it, it would have been lawyers. and you were not able to, and you guys speak for hundreds of thousands or millions of women, and indeed, some men across the country. i yield back. >> gentleman yields back. ms. jayapal. >> thank you, mr. chairman. i want to just start by saying thank you so much to ms. spottiswoode, ms. newton, and ms. henry for your testimony and for giving courage to millions of women across this country. i know this isn't easy. and i'm sorry that this is what you have to go through. i am a very proud co-lead of this bill, the bipartisan,legis forced arbitration for sexual assault and sexual harassment right, which would preserve the right to choose how they seek justice, so you have my deepest, deepest appreciation. ms. spottiswoode, i'm very grateful for your testimony and i'm going to direct my questions at you. i'm sorry to have to get into the details of this in the way that i'm going to, but i think it's important for the country to hear your voice and to see your courage and to see what you had to deal with. when they sent you an email about him fantasizing about raping and strangling you, how did you react and how did you feel about your safety? >> thank you. i was appalled. i felt very unsafe. i was really afraid for my life and my wellbeing. i didn't think there was anyone i could go to because i had already spoken to the head of my office and asked other people on work trips to keep an eye out for me, and i just knew that nobody was going to intervene. and yeah, so i felt very alone. >> and that event occurred before the company trip to brazil, correct? >> which event, sorry? >> when you got the email, that occurred before your company trip to brazil. >> yes. >> you were responsible for the brazil account, so it's fair to say you had to go to brazil, correct? >> i was the head data analyst on the accounts, so yes. >> that was your job. >> yes. >> do you believe that he planned in advance to strangle, beat, and rape you in brazil? >> i try not to think about what he was thinking, but yes, i would imagine so. >> and when you were on the brazil trip, after you told him you were feeling unwell and heading to your room, what was your reaction when he said he was, quote, coming to your room? >> i just felt like i had run out of options. and at that point, i was trying to mitigate harm and not make him any angrier, if he was going to be showing up at my door angry because i hadn't responded, that seemed worse than -- yeah, so i wanted to get -- i wanted to not get hurt. >> you believed he would have forced his way into your room? >> i didn't know what would happen. >> and you felt that you would face even greater harm or injury if you had not gone there. >> definitely. >> it sounds like you were in survival mode at this point. were you afraid that he might try to kill you, especially if you continued to ignore or resist him? >> i was. i wouldn't necessarily have put it that way at the time, but i was having nightmares. even before my experience in brazil. and yeah, panic attacks and i think a lot of us are very good at compartmentalizing because i wanted to do my job. i wanted to be really good at my job. and so i tried to put it away, but those things kind of rise to the surface from, yeah, in your subconscious, so yeah, i was very afraid. >> and the attack occurred overseas. did you feel comfortable going to the brazilian police, and would the law even have allowed you to seek help from american police? >> i did not feel comfortable going to the brazilian police. it's not common for people to speak english there. and i was afraid of what would happen if i went to that authority there. when i came back to the u.s. and consulted an attorney, they said that they thought that it was unlikely that criminal proceedings could be brought because the events had occurred abroad, so yeah. so i didn't really consider that an option. >> and ms. spottiswoode, your abuser went to great lengths to remove you from the country and away from friends and family before forcing himself on you and repeatedly asked you for sex and put you in a position where you had to speak up to get him to stop. did you feel that you had to apologize for repeatedly turning him down? and how did his repeated advances and anger at your rejection affect your behavior? >> absolutely. so yeah, i think anyone who has experienced something like this knows that you don't just say the same thing every time someone asks you like this, because you try to say something else and convince them another way. and i didn't want to just repeatedly reject him in a way that would make him really angry, so i would come up with other reasons, like i would tell him that i had work and couldn't meet up or, you know, basically would just say anything else to get out of the situation. and i think women who are having these kinds of experiences just never think that anyone is going to be looking at a transcript and try to figure out what happened so they're just doing whatever they can to try to get through an experience without getting hurt. >> to survive. ms. spottiswoode, nobody should have to go through this. i'm so grateful to you for your courage, your bravery, and your testimony. forced arbitration for sexual assault is a lose/lose scenario and we're going to do everything we can to pass this bill and to protect women like all three of you and millions around the country who are grateful to you today for your courage. thank you so much. i yield back, mr. chairman. >> thank you so much. >> the gentlelady yields back. ms. demings. >> thank you so much, mr. chairman. and thank you to our witnesses for being here today. as someone who worked in the criminal justice system, i think the testimony that i have heard today, what has happened to you, is appalling. and our job is to make sure that it doesn't happen to other women. i don't know if there's anyone who believes that forced arbitration should be okay in cases of sexual harassment and sexual assault. and you know, as i listen to each of you testify today, there just seems like there is this recurring theme that it's almost a culture. it's, you know, an incident that occurs. okay, let's deal with -- i wish this was an isolated incident. but it seems like it's a culture. where powerful people in powerful places believe that everything and everyone is on the table, and through forced arbitration, they almost in advance get the victims' permission. ms. gilles, if you could speak a little bit about the culture. that's what really bothers me about this, the culture of it. because when something bad becomes so acceptable and if you could, ms. gilles, just talk about the culture, and before, ms. spottiswoode, you talked about how you were victimized in front of your coworkers. like the culture, it was okay to let everybody see because that's what happens here. to say that it's okay to just settle for forced arbitration, i think it's appalling. so ms. gilles, okay, please. >> i think you have hit it right on the head. i think forced arbitration allows employers to maintain a toxic culture. people are getting promoted. ms. newton tells us a story about people getting promoted, her attacker getting promoted. these sorts of things, people grabbing butts in front of people, this kind of thing -- >> a culture. >> -- is a culture. let's be clear. there's only one way to break down a toxic culture, and that's sunlight. we have to make it transparent what's happening. we have to make companies realize there is accountability and possibly liability if they fail to fix the culture. we can appeal to companies in all sorts of ways and i know you all have tried to do this. it's not in their economic best interests to allow these things to go on, they lose money when women aren't productive, when they're afraid for their personal safety. they lose time and productivity when men are doing these crazy things. we can appeal to that, and it does not change the culture. what changes the culture is accountability. that's why we have courts. not arbitration. that's why we have courts. and they have done a very good job, not good enough, right? these things are still happening, but i think we have gone back. i think when you think about it, i'm old enough to know this, we have gone back to like the 1980s and the way that corporate culture is allowed to just be, you know, bros. just people doing whatever they want. >> ms. spottiswoode, as we're talking about the culture, and i just so appreciate all of you for being here today to shine a light on this problem in our society, tell me about, you know, i don't necessarily want to ask you how you felt, but to do it in front of others, just like it was expected. it was okay. could you talk a little bit about that moment, please? >> of course. it was humiliating. i felt like an object who -- and yeah, you never want your coworkers to be thinking about your butt or thinking about you as sexual in any way. and that's what this does, is it forces you to be a sexual object in your workplace. and it's someone else making that decision for you. and you never get to take that back from them. >> thank you so much, and finally, ms. henry, you talked about during your time, and you were so glad to -- all of you were so glad for the opportunity in your dream jobs, but you were told it was just hr stuff, right? just hr stuff. that when you were signing the papers. and we know that closed arbitration is often buried in the fine print. if it's such a good thing, such a great option, why do you believe it's buried in the fine print and it's just -- it was just told to you, it's just hr stuff? >> i feel because they don't want you to know. they don't want anybody, i guess, to be held accountable for such actions. it's easier just to sweep it under the rug and let it go than try to make, you know, nobody in the community knows. customers coming in daily doesn't know what's happening behind the scenes. it's just not fair to, again, it's not fair to the victims. i had no idea what even arbitration was until i came here. >> thank you again. thank you all so very much for your testimony today. and your bravery. thank you. mr. chairman, i yield back. >> the gentlelady yields back. ms. fishbach. >> thank you, mr. chair. i appreciate the opportunity. i want to direct some comments to ms. perry and ms. st. john and what's happened to so many women and others in the workplace is terrible, but i really am concerned that by involving the government in these contracts between adults in the area of sexual harassment and assault, we're opening the door for more government involvement in other areas of contracts. i think ms. perry in your opening, you pointed out some of the things that are going on already. you know, there's over a dozen bills right now in the house, which have government intervene in contracts. clearly, this bill is not being considered in a vacuum. there is a lot going on with this. there is a concerted effort in washington, d.c. to decide the contents of contracts between adults. this is not what the competent and responsible adults of my district want because they accept the fact they're signing a contract, but ms. perry, do you think there's a danger in passing small targeted bills like this one in opening the floodgates to government intervention in contracts? if you could speak to that. >> i absolutely do. in fact, the reason i melshed confidentiality is meaning to make clear, if this bill goes forward, it needs a rider discussing things like the inapplicability of ndnas, but we have poked a hole in the dam to eviscerate the faa. i don't think there's anyone on the panel other than potentially ms. st. john and myself to wants the faa to stick around, and that's absolutely not even considering 100 years of jurisprudence, and what they have re-enforced. they just granted sert in yet another case. they will take up arbitration again for the third time in three straight years. i have problems when we come in and make attempts to slice away certain provisions of long-standing federal law because it does open the door to more government intervention. and that does bother me. >> and ms. perry, and ms. st. john, if you have anything to add, please go ahead, but are any of the states addressing this? or is this just an issue at the federal level? >> there are actually five states that have already passed legislation stating in certain types of employment discrimination claims, ndas, confidentiality agreements cannot apply. at the state level, we're seeing an increase in legislation designed to be protective and rightly so. these are contracts, like any other contract, and there is absolutely nothing in supreme court history that says these particular contracts are coerced. in fact, the court has held universally exactly the opposite. >> well, and i would argue that you sign it. it is not -- you know, even though we use it's forced arbitration, as people are saying, it's not really. you have signed something you have agreed to it. but just kind of a little bit, i guess, of a hypothetical, but under current law, what prevents someone from suing, even if there's an arbitration agreement in there, i understand that it could be thrown out, that there's issues like that, but i know that part of the issue is bringing things into the light. and even a case that was dismissed would certainly bring that into the light, and there isn't anything that would prevent them from doing that. >> multiple federal circuits and the supreme court have vacated remedies, awards for material breach, for impartiality of arbitrators, for malfeasance, for adhesion. they will not enforce a contract that is deemed to be adhesive, so when congressman gaetz represented that these were contracts of adhesion, contracts of adhesion are not legally enforceable. >> i know there is one example i have heard over time that even though there was an arbitration agreement in the contract, they sued the offender separately and were very successful in that. but is there anything else, ms. perry, you would like to add that maybe we missed or you heard that you would like to add something to? >> well, we can quote battling statistics all day, but the fact of the matter is we have a 40% increase in federal filings. our dockets are crowded. justice delayed, particularly for women with these claims, is justice denied. that right to a trial guaranteed by the seventh amendment has been interpreted by the supreme court to be as good in arbitration as through litigation with certain protections in place. >> thank you very much. i appreciate it. anything, ms. st. john, if you have anything you would like to add. >> i'll just add there have been examples where workers have asked for these clauses to be taken out of contracts, and they have been successful, so the idea that it really is forced, i don't think is borne out by the facts. >> thank you very much, and mr. chair, i yield back. >> ms. scanlon. >> thank you, chairman nadler, and i want to thank all our witnesses for testifying before us today, particularly obviously the survivors. i applaud your courage and openness in discussing this deeply emotional and painful subject, you know, like a majority of women in the workplace, i have experienced unwelcome sexual harassment and physical contact, while less horrific than the experiences you related today, i want to acknowledge how pervasive and corrosive this issue is, and thank you for your courage, again, and your resolution in sharing your experiences to really shine a light on what we're actually talking about here, not some dry contractual provisions. i would like to discuss with professor gilles some -- a couple different topics. the nuts and bolts of why forced arbitration doesn't favor employees, how it is different, what we're seeing today, than what congress intended. and why it's a problem that the supreme court has so grossly expanded the federal arbitration act. so first of all, the nuts and bolts of why forced arbitration doesn't favor employees. several of our colleagues have mentioned litigation is very expensive. but so is arbitration, isn't it? these employees have to get a lawyer. sometimes the arbitration is in a venue that they're not familiar with. can you speak a little bit to the costs of arbitration? >> the costs are high when employees actually decide they want to go into arbitration, they're doing it alone. so they're not doing it as a collective. so there's no pass the hat that we would see in a public court system because the arbitration clause prevents class and collective litigation. right off the bat, i think that's a lot for an employee. when you think about where these claims are coming from, they're often sounding in sexual harassment and hostile work environment. proving that is a pretty huge lift. i mean, lawyers have a very difficult time, and we have lawyers in the gallery who do this. these are really difficult cases. i know there's been a lot said disparaging about there's just going to be lots of plaintiffs' lawyers getting rich. they don't get rich off employment discrimination cases because they're really expensive, expert-heavy, and require a lot of evidence. the same is going to be true in a successful arbitration. >> am i correct that companies that include these forced arbitration clauses in the fine print in nonnegotiable contracts are actually saving money, right? they don't include these clauses because it's the goodness of their hearts. it's a cost saving ploy. >> it sure is. i just want to point out that ms. st. john said earlier that having these clauses leaves money for companies to add to benefits of employees. and i tried not to laugh out loud because that is not what's happening. okay. it's not like my 401(k) plan is getting better matched because my employer has a forced arb clause. they're keeping this money. they're saving all the money they would spend on litigation or spend on just making their work culture safer for women. and they're just using that to line the pockets of their shareholders. >> so we have seen a little bit when the forced arbitration act was originally passed in 1925, it was designed as i understand it to be an option for commercial entities of roughly equal bargaining power, and in '67, the supreme court even held it was designed to include protections for captive customers and employees who don't have equal bargaining power and are faced with a take it or leave it contract. but what we have seen over time is that the supreme court has expanded the faa beyond congress' original intent so it does apply to everyday consumer and employment contracts. this seems like it should be an opportunity for congress to intervene and say, that's not what we intended. correct the judicial activism we have seen from the conservative supreme court. >> and you have been urged to by the late justice guns brg twice. she sort of begged. she wrote dissents and she read them from the bench signaling her displeasure and said this has gotten to a tipping point and the only thing that's going to change this is congressional action. and i think she was right. i think the only thing that can do this is some change to federal law. >> it's not just progressives who are concerned about this expansion of the federal arbitration act, right? we have heard from attorneys general from 50 states, d.c., and territories saying this is a problem. can you explain that? >> well, so the a.g.s are very worried because they're getting tons of complaints because these women can't bring actions on their own. they can't bring private litigation, so where do you turn? you turn to the public enforcer because you don't want to go into arbitration and have your claim decided by some arbitrator but never to be heard from again. you want to make change in your workplace forever more. but the problem is, especially in recent years, post-covid, they don't have the staff for it. they don't have the resources. so we can't rely on a public enforcer do the work that congress intended private individuals to do when they enacted title vii. >> thank you. i yield back. >> thank you. >> mr. chair. >> the gentle lady yields back. >> mr. chair, i just really quickly wanted to ask, given that one of the witnesses' names was used directly, that would they have the opportunity to respond? >> yeah. for 30 seconds. >> it was ms. st. john whose name was referred to. thank you. >> thank you. when a business saves money in one area, it's going to invest the money somewhere else. i think it's perfectly reasonable to think if the benefits are abbreviated for employees in one area, they're going to invest in another area on behalf of those employees. thank you. >> mr. mcclintock. >> thank you. first, to be clear, rape, sexual assault, are serious, serious crimes punishable by serious, serious penalties. is there anything in an arbitration agreement that prevents the perpetrator from being charged and prosecuted under these criminal laws? ms. perry. >> none whatsoever. they will always have the right of criminal redress. >> ever be possible under our system of justice to write an arbitration clause that would forestall the ability of a prosecutor to bring charges for these crimes? >> no, it would be legally unenforceable where. >> ms. st. john, do you agree? >> yes, absolutely. >> the seventh amendment requires the right of a jury trial, and arbitration clauses violate this guarantee. but the constitution also recognizes the sanctity of contracts. fact of the matter is, first amendment guarantees us the freedom of speech. and yet nondisclosure agreements are often common in contracts as well. i think every contract ultimately constrains and limits the rights of both parties. that's why you have a contract. one party gives up money, the other party gives up time. every condition of a contract requires either one or both of the parties to give up individual rights in order to reach a mutually agreeable outcome. if the net result of the agreement is not beneficial to either party, then the agreement simply doesn't take place. this business of forced arbitration will force requires a gun, and i believe we all can agree a gun is a bad thing to be brought into a voluntary agreement between two parties. but the fact of the matter is it seems to me once we start limiting the freedom of parties to contract with each other, we lose that mutual negotiation that produces an agreement that both sides benefit from. what am i missing here? >> from my part, nothing. >> ms. st. john? >> i agree with that. these are voluntary agreements. >> let me ask you this. if arbitration agreements are such a bad thing, why would we exempt unions from the provisions of this bill? either of you have an explanation for that? neither do i. it seems to me for my part, thinking as an employee, i would personally prefer an arbitration clause because frankly i can't afford an attorney. i can't afford the enormous costs of going to trial. i wouldn't want to wait years and years with something like that hanging over my head. that's just me. i make that choice when i approach an employer. the employer might prefer the same thing. he might not. if he doesn't, i might ask for something more or simply say terms aren't acceptable to me. i'll go elsewhere. if the employer says that he agrees, well, then we have an agreement that's mutually beneficial, and i wonder what gives members of congress the right to tell us that we can't enter such an agreement? >> i think you have stated the issue quite eloquently. this is a matter of state and common law. we have been overseeing contracts for years between private parties, the more we get involved at the federal level, the more problematic the trend can become. again, these are not contracts of adhesion. if they are, they can be challenged in court. and the outsized power, i believe, is most fully exercised during litigation. where a giant corporation like lvmh has multiple millions of dollars available for litigation. >> as an employee, that would scare the hell out of me. going against a legal department with my meager resources. >> absolutely. >> there's a provision that provides for an opt-out once the dispute is established. what effect does that have on the parties? >> i would say based on prevailing rhetoric, it is probably going to disincentivize someone to pursue arbitration. what we're hearing is that the only solution, the best solution is going to court. at that point, the balance of power has changed most significantly, and i find that problematic because the are difference incentives, different driving factors. one with a low-value claim will definitely want to take it to court. a high volume claim would want to arbitrate. there are so many intersecting interests at that point. and so many disparities among the two individuals after a sexual assault or sexual harassment claim have been filed that it makes arbitration impractical if not impossible. >> thank you. >> gentleman yields back. ms. garcia. >> thank you, mr. chairman, and i must say that first, i want to thank the witnesses for testifying today. i know it takes incredible amount of courage to share such painful stories and to have to relive the words and bring back some of the memories of every circumstance that you have described. it's, i think a couple of you brought a little tear in my eye right here because it's just so, so painful, and i can see that. as a former judge, you know, i have a very deeply held belief that everybody should have their day in court. everybody should have their day in court. that is just the essence of justice for all in our country. so we are glad to be able to hear from you today on this bill so that we can act as others have said in due justice for all of you. i want to start a little bit from where ms. demings left off with ms. henry. you know, when she was talking about the culture, it's interesting to me to see that all four of you are from very, very different sectors. different levels of professional work that you do. different environments. but yet it's the same culture. and it's the same kind of situation that happens to women across america. and i must admit that even i -- even as a judge, i was sexually harassed at the workplace. it happens to all of us. i know it's hard to relive the moments, but ms. henry, can you just tell me how you really felt? i mean, i know i remember how i felt. how did you feel when your employer even went went to your? were you -- did you fear for your life? >> i really didn't know what to anticipate from the whole thing. it got to the point where it was out of control. i was -- yes, i did fear. there could be more as the more angry he became, the more i turned him down and asked him to stop. i was worried for my safety. i was also -- i'm sorry. >> take your time. take your time. >> i felt ashamed. i felt, you know, i'm a working woman. i've been in the workforce a very long time. i didn't deserve this, i didn't deserve to be treated this way. i did feel i was a strong woman but when someone treats you that way, they beat you down. and you feel like you have nobody to talk to. so i was afraid to even say anything but it got to the point where i was fearing. that's why i had finally tried to get some help. >> right. and how about you, ms. newton? >> i had similar feelings, yes, about how i felt. i was just demeaned. sorry, having trouble with my mask, but felt extremely demeaned and humiliated. i felt i was being made an example of, that i was being used as a poster child with don't come at us with this type of thing or we'll name you in an email with the ceo, sit the harasser up front, and similar to what lauren said, i felt very isolated. i think i had even written to friends, i felt beaten down. i said that. >> thank you, what about you ms. desco, it's surprising that even in your industry, people watched what your predator was doing and nobody did anything. >> yes. i felt unprotected, and i felt angry. i felt confused, as all the other women have described. it's like a suffocating feeling because just as human beings to have our voice and be able to speak out behind someone, you know, disrespects you and as a grown woman, as an adult, as a human being. demeaning, suffocating, i just came home every night and, you know, could tell my husband. and it was also just so shocking that in in day and age, as you said, as so many have spoken about, the culture, that the culture was accepting of that and while i don't blame some of the individuals because they too reported to their bosses and didn't want to lose their jobs, the it starts from the head. and when you have someone in such a high position of power and they're the boss i mean who confronts the boss if they don't expect in some sense that they could lose their job? so when the arbitration clauses protect the bosses, there's no protection for the employees. >> thank you, and i know we've heard a lot from the last witness and i know that you've talked about fear and i think you said earlier that you didn't go to the police because you were in brazil, right? >> yes, that's right. >> and you have to have a level of trust to be able to sit down and talk to law enforcement about this. i know that's true for many rape victims. >> absolutely, and you need to speak the same language as them and so there were a lot of reasons why i didn't go to the police. >> thank you, and i see my time is running short, but i just wanted to ask, well i wanted to ask all of you, but my time is short so i'll start with you. when did you -- i'm sorry? >> yeah, time expired, 17 seconds ago. . >> thank you, mr. chairman. i just arrived at this hearing is it correct that the collective bargaining provision excluding unions has been struck from this bill? >> yes. >> so that provision in the bill with regards to collective bargaining agreements has been struck? >> yes, in the amendment, should be doing that. >> okay first of all, ms. perry, before we start here, i want to thank all the witnesses for being here today in whats, i'm sure, not an easy thing, to come before the committee united states congress and thank you for coming today and giving your testimony. ms. perry, representative clintock gave this question to you, in regards to arbitration and got the idea there could be more added. do you want to give more to your testimony in regard to mr. clintock's question, arbitration impossible? >> i suppose after a defense occurred, interest of the party has changed dramatically, one is put in the status of victim and one is a perpetrator, at that point, making arbitration a viable opportunity for the claimants is next to impossible. getting to that agreement itself is going to be incentivized differently, particularly so by employers who by that point will want to certainly keep it out of the public eye and depending on the value of the claim will figure it's faster and cheaper to go through arbitration in the first place so ex-post provision on something like this isn't likely to have meaningful effect. >> do i hear, in this process you're talking b could put the employer in a stronger position? >> absolutely. >> significantly stronger? >> yes. >> would this process be better if the process was allowed to be public record, so everyone was on notice of the offenses instead of striking arbitration all-together? >> that's a very accurate assessment of my position on this precisely, if we are going to get involved, and long-standing precedent and federal law that has been routinely upheld. let's do it to the most narrow extent possible and make sure the entire premise for today's hearing which is shielding bad actors is removed all together. >> thank you, and i will yield back, mr. chairman. >> thank you so much, chairman atler and thank you to all our witnesses today, thank you so much for being here and thank you for sharing your experiences, surviving sexual violence and harassment in the workplace, i read each your testimonies and know this is not easy for any of you so i praise you all for your courage and strength and also want to thank our experts here today as you continue to just shine more light on these issues. and i know that one of the reasons it's so consequential that you're here before us sharing your experiences is because some of you are subject to arbitration clauses that force, that were forced really, upon you, when you entered employment and i can only imagine that when you first began to work for your company, you were filled with the excitement and all the eagerness, you know, for your new journey that laid before you and you could not have imagined, i'm sure that you were also signing up to be silenced and suppressed at the same time. no one should ever have to experience violence or harassment when they're just simply trying to put food on their family's table or doing the work that they love. and if they're so cruelly jub objected to that then they should not then be forced arbitrate their claims and be forced to silence, the confidential nature of arbitration always kind of allows companies to prioritize protecting their own image instead of seeking justice and really seeking truth, and this has allowed as we're hearing today, countless stories of women and men's trauma that's been hushed and hidden and i just want to say that because of your strength, those of you before us today, in particular, all of you women sharing your stories, i hope that, you know, future survivors will not have to suffer in silence anymore. and i'm so grateful for your being here today. my questions are really, actually, for each of the survivors. and i preface them by saying, please take your time, the time you need when answering them but would also really like to be able to hear from all of you so if you could succinctly, how have your experiences enduring these horrific sexual violence and also arbitration affected your physical and mental health, ms. newton i'd like to start with you. >> thank you, congresswoman, for me, my physical health has been jeopardized constantly. i was hospitalized twice last year. i have been diagnosed with ptsd. i have, now, a team of medical advisers because of all the consequences i've suffered in having to deal with the amount of stress this causes me and had to take medical leave earlier this year, so it's a constant source of damage to my emotional and mental and physical health as well. >> anyone else, like to -- >> i mean, i can speak to my experience, just as far as, you know, i was coming into a time of my life where i was getting married, i had my first child, i just had my second child three months ago, and every single time i have to relive this experience and retell this experience, the retraumatization is very real. my situation, you know, there was not a physical assault, but the words leave me to this day with a feeling like hands on my throat, like you feel like you can't breathe. it affects your relationships with your colleagues and your family. it's so isolating. the isolation is just maybe one of the most horrendous parts because i think we heal through telling our stories, through connecting with others, and an inability to do that just leaves you in this isolated, lonely place. the shame people have talked about is very real. you're reshamed, reshamed by, you know, your harassers through the process. i was horribly reshamed while in the process leading up to this by my employer, my harassers and i want to leave the others time as well, that's just, those are some examples. >> anyone else like to respond? if not, my time is up. >> just to respond quickly, i recovered very quickly from my physical injuries but i have ptsd and that ferkts my life everyday, and in addition to the stress of being in on going litigation and knowing that every time i talk to my parents, an on going presence in our lives, costing us money, invading our time together, my relationship with my parents will never be the same and my relationships with other people, my trust is just shattered. >> thank you, so very much each of you, and my time is up. >> thank you mr. chairman, i have a little bit different question, maybe ms. perry i'll ask you, it's unfortunate and sad the things that happen, and it's, you know, a lot of brave women willing to step up and have conversation so it's good to have conversation but also situations some women may not feel comfortable to go in the court of law, get an attorney, you know, and it's got muffin longer process, much more public process and i can see some women would have a valid concern if that, you know, arbitration process is not available, they might actually just, either live with that or live, you know, the job, and if we, if i look at this bill, and it's very broad definitions too, could have some interpretation from attorneys, a lot of times i see they're the only ones who end up with the money not actually victims but also companies wouldn't even offer them option which are valuable option for the women. so my question would be for you, if you look at arbitration process, and i'm not attorney, so i want to see, is there something within the process, you know, that could be improved? and also, if this, you know, arbitration companies is not doing proper due diligence. what is the recourse, what recourse is available and maybe the recourse could be available from a point, if rail doing something wrong and not taking seriously the case, in bias, or not doing a good job? if you could list some things that could be improved in the process. >> there are a number of remedies available to claimants here, one is material breach of the arbitration clause itself, one is vacation of an arbitration award when it's determined the parties were in outsized influences of power that contained terms that solely benefit employer, circuit court ruled that in '79, fda guarantees neutrality and any evidence of impartialality can be indication of award, claims brought simultaneously and the supreme court has held we want to make sure individuals don't just go through arbitration but through the eeoc because we want to make sure these claims are a federal recordation of what's transpiring behind closed doors. so there are multiple avenues here that can still be pursued. there is nothing in the faa that prevents individuals from going to appropriate law enforcement officers, filing eeoc claim, bringing the claim for adhesive contracts, contracts that are out weighed, out balanced so there are options through the faa that allow particular claimants like those here and i want to stress, this is a uniquely female issue. the eeoc sees statistics from last year, only 16% of 6,500 claimants were men. this is a culture specifically relatedly dealing with female harassment. women bear the brunt of sexual harassment. i'm a for plaintiffs lawyer representing womens and claims against major cooperations, i've also seen how out gunned they are when litigation is pursued as an option and universally they end up settling because they cannot bear the financial burden. >> but if you would look at what is there, if there is something improved in the process, because you've been on that side, and i'm not attorney, i try to understand, if something could be improved through legal frame work that it is a system, to give option but still have the transparency needed, is there something you could state a few things. >> yes, confidentality and the use of nondisclosure agreements, if we carve out these for sexual abuse claims, we need to copy them along side and nda and confidentality provisions so all this about bad actors can be solved. if that is truly the issue, let's disclose everything. let's modify the faa only to the extent that bad actors in these particular claims can ultimately be brought to the light. >> okay, thank you, and i yield to chairman. >> i thank you, for yielding. i just want to point out that we have nothing against arbitration. if the woman is, in the case, chooses arbitration, that's her choice. the point of the bill is that she should have that choice rather than be bound by an arbitration clause that was -- >> yeah, i was just saying employers will have no incentive to choose this in agreements, just say completely take it out. that is my concern that as legislation passes, they don't have to, you know, they don't have to propose it at all. my time has expired. >> without objection, i thank the gentlemen, thank the young lady. but the point s she should be able to choose arbitration. if someone has a dispute with a company and she and the company both, go for arbitration, fine. the point of the bill is that very often, in employment contracts which you have to sign if you want to get a job is a mandatory arbitration clause which means you have no choice, and that's what we want to solve here. >> i reclaim the time, just quickly, that will give companies to not have an option to offer them have no incentive to offer arbitration at all if it has to be, you know, and that's what my concern is they will not even have it. how is an employee going to come to the company and say i want this, well too bad, i don't have that negotiation power, so if we want to resolve it, maybe look more at transparency, but i understand your point so i yield back. my time has expired. >> the general lady's time has expired. >> thank you mr. chairman and i want to say thank you for hosting this hearing today and certainly supportive of the underlying legislation and each of the witnesses, thank you so much for appearing today and for your very brave testimony. professor gillis, i'd like to point you to a 2016 letter e civil rights legislation conference and in that letter says, quote, arbitration process does not allow discrimination nor the opinions that help develop the law and provide further guiden on emerging trends, as a result, land mark civil rights laws such as those protecting from gender, race, sexual harassment, i wonder if you can elaborate on how those sexual harassment are affected. >> i totally agree with the letter, feel like i've written letters on that impact of forced arbitration, it's not that difficult to discern if claims are being shunted into a sealed, silod, private regime where corporations write the rules, employees and consumers can't bring collective claims, there's no written decision, and despite some of the discussion, i won't call it out by name, but despite some of the discussion about how easy it is to go to court and have your arbitration clause deemed unenforceable, that's actually not the case. we've spent the last decade litigating all of these arbitration clauses and court after court, dutyfully following supreme court has upheld arbitration clauses nine times out of then so the problems are severe and i think you're right to point out they're particularly severe when we think about the most vulnerable groups in our society, minorities, women, low wage workers, people who often lack political voice and for whom collective litigation is probably the only way they're going to be able to resolve their disputes. i also just want to take a moment, although the representatives left, to just note that the discussion just being had was a little hard to keep on the record. post dispute arbitration is fine and the truth is if employees don't have incentive to offer it after dispute has arisen i don't understand why there's incentive before hand completely unfair and illegal, it's perfectly reasonable as discussed before hand they want to resolve the dispute in arbitration once the dispute has arisen, the incentives are still there if you believe them that it's maybe fast or cheaper or the secrecy or privacy is of benefit to both parties. i don't understand the argument that employer suddenly won't want to offer that as an option and i think that's wrong. >> i certainly share your confusion on that point, i'm glad you address it. i couldn't agree with you more, not to belabor the point but i think your summation on the various reasons why arbitration can be so flawed in terms of corporations writing the rules and victims and employees and consumers being unable to pursue claims and the process to avoid transparency is all the more reason for us to move forward with the underlying legislation so again, i thank you for your testimony and thank all the witnesses for their testimony today and with that, i yield back to the chair. yield back my time. >> thank you mr. chairman, thank you to the witnesses for their strength and courage, and certainly patience, for being here today. i'm tempted to talk about one of the remarks made about the jury system being quote the essence of justice for all. i'm a trial lawyer, not a very good one, but tried a lot of cases and would suggest there's a lot of room for improvement when it comes to jury trials. not to mention, some of the things that give them their merit, which is the cruiseble of cross examination and would suggest many people who have gone through the horror, terror, you folks have, would want to avoid that. you're here today and i'm very proud of you for being here. i have a question for ms. perry and goes to what should be the default position in these contracts, if not arbitration, then what? because as we know, i think as i understand from the research i did for this hearing, arbitration is a device to limit risk and make certain the future of a business's activities or others. if we don't have arbitration as the default device what other would it be? >> excellent question, i think the only other option would be litigation, determining what we're up against, the costs and delays associated with federal litigation, you're looking at very much justice delayed in these particular circumstances. what we're doing is forcing everything through an expensive protracted process where the balance of power between individuals and their employers is significantly intensefied i would not want to face multinational corporation with attorney's fees, if i had an audition to pursue it a different way, litigation allowed under the faa i would want to appoint my own arbitrator, the company appoints its own and there's a neutral arbitrator and that's the way to go forward on these cases. >> one of the reasons the arbitration device has been embraced, if you will, by businesses and others is to avoid the run away jury and if there's one problem with juries, there's that. the old concept that you're going to get a balanced result isn't necessarily always true. so the challenge, i suppose, is that if this bill passes, isn't it correct to say that we will see the cost of such a result spread about among all of us, as we see corporations reporting to what would then be the default, that is litigations, is that a correct, and by the way, not trying to demean or belittle, bad things have happened, they should, so we're really debating here how best to do it. that is what she was trying to get at, do we improve the arbitration device or chuck it in the dumpster? >> we can improve it, i think those revisions are front and center in this debate, if indeed, confidentality is as we need to, but i'm not hearing that is even a suitable suggestion. so is it in fact, these sex harassment claims subject to confidentality provisions and if we make sure they're not complicated everything will be fine or is it a piece meal slice and dice of the faa? >> that would be a good summary where we are. >> gentlemen, yield? >> yes, i will. >> thank you. following up on that, we have the question of nondisclosures at the end of the process. because you've looked at this and studied it so much, if at some future time we're dealing with reform that is not this bill, but something going forward, how would you deal with the fact that in normal litigation situation, the plaintiff gets the benefit of basically the whole company knowing about the allegation and thus people often come forward. in an arbitration, normally, it doesn't become as public, and therefore you may be dealing piece meal with different litigants over time. what would be the best case to consider parsing that in the justice system so they aren't alone if in fact there are multiples within the company as there often are. >> well i would naturally suggest class actions but we know how the supreme court ruled on that and under faa say class actions are not -- >> i was more thinking how do we feel someone who feels they've been wronged can, in fact, make it public enough in advance? because nondisclosure would sometimes create a situation just -- i wonder that, because i'm hoping we're all taking this legislation seriously, even if we oppose its current form. >> yes, again, at the risk of repeating myself i go back to the privacy concerns and knowing five states have successfully passed legislation to that effect, to make sure these contracts like any other contract make sure there is no coercion, no privacy, that these will be as of as public as a matter of public litigation, i think that's suitable as to what we have now. >> thank you, thank you gentleman for yielding. >> thank you very much mr. chairman to our panel of witnesses. my words cannot possibly express how deeply meaningful and impactful your testimony has been today. but i also begin by saying i have a profound appreciation and sincere respect for each of you, for sharing your stories, which are intensely personal and for standing with moxy to expose behavior that is too often hidden from public view. forced arbitration agreements are a piece of the system and procedures designed to silence critical voices, perpetuate abuse and enable predator to see hold on to their positions of power. we are taught that light exposes truth and it is clear to me that justice is rarely done in secret. so i am pleased that this committee and this congress have made it a priority to address this issue. in a bipartisan fashion, to ensure there are additional pathways and justice to those who experience sexual violence, harassment and retaliation in the work place. i have a few questions for ms. newton. ms. newton you describe the ceo of louie vaton sending an email to the entire campaign a day after your complaint in court. how did that make you feel? >> it felt awful and let me say, i work for the holding company lvnh, their american affiliate, but i was sitting at my desk when the email was sent working, already afraid to have filed a complaint against my employer while working, sitting at my desk going through the email at work and i see it pop up and the whole email was basically about my case, totally discredited me, as an attorney i pride myself on creditability and it's what we hold as our value as attorneys and as attorneys, and that was completely destroyed in a second. >> in your time louie vuitton did they ever express to you any this email. >> never, about the email -- the extent it went to, it wasn't just the bland email, it was several paragraphs long, several sentences long and it went through and mischaracterized what had happened and the nature of my complaint was definitely done with the intent to not only silence me, but send a message to other people, we will crucify you if you do something like this. >> in your impression, was it damage control by the company? >> yes. >> if the ceo ever thought his behavior would be made public, do you think he would have taken this action? >> no, i think every single move they made was because they knew that eventually, as they succeeded to do, they would get this into a closed-door proceeding. >> ms. newton you were asked to apologize to your harasser. is that correct? >> unfortunately, yes. >> and did they explain why you had to do that? >> they said that the stalker, he couldn't sleep, he couldn't eat, because i had confronted him about the harassment and he needed to be able to do his job, and therefore i should apologize to him. >> is your standing at louie vuitton and the holding company been impacted since reporting your harassment? >> since reporting i've received negative reviews, my annual salary went down, bonus went down, probably passed over for promotions to subsidiary companies, my career has been stalled and put on ice, really, and potentially damaged in the future. >> if employees were able to pursue traditional lawsuit for a jury in front of one's peers do you believe the company would be forced to take sexual harassment allegations seriously? >> 100%. i think the fact that they know eventually this will be behind a closed door completely covers every single action they take responding to it. they know, this will never see sunlight, therefore we can do whatever we want. >> knowing what happened to you, at louie vuitton and the holding company, and the company's response, do you believe other victims at the company will come forward to report sexual harassment or sexual violence in the work place? >> so, just to understand your question correctly, are you saying other employees at lvmh will come forward after -- just rephrase? sorry. >> i apologize, knowing what happened to you and the knowledge of what happened to you, what's going to be the impact on other employees who may have, sadly, similar-type claims? >> oh yeah, i think this will stop them from ever coming forward. this type of crucifixion, making a public shame out of me is not something anyone would want to go through. it's just devastating and humiliating and degrading and i think they were showing other people, if you do this, you will go down like she did. >> your courage is really amazing, thank you for your testimony today. i yield back. >> young lady yields back, ms. dean. >> thank you, chairman, it's been widely reported and every person to a person has shown that there is a culture in many work places, sadly. one in four women have experienced sexual harassment at work, 85% of woman have experienced unwanted sexual behaviors in the work place. we talk of this as the black hole that is forced arbitration. think of the words themselves -- forced arbitration. it's paradoxical. it's self-evident that there is a problem with this process. it protects companies, hides predators in plain sight. your stories revealed that. i want to use my time to hear a little more from you -- i was debating whether to call you victims or survivors, i decided to call you four women of strength. i thank you for sharing your stories, we, here in congress, need to be humbled by your strength. we are obligated to do better. ms. henry could i start with you, something you said, many things you said in your testimony struck me. you said you shared with us that you, quote, gathered all of your courage that you could stomach and filed a lawsuit. i think people don't have any clue what that moment is like, let alone the moment when the door got slammed on you when you learned about the forced arbitration, what was that moment like? what was the challenge there, to come forward and say i've got to sue over this? >> at that point, i was feeling defeated and i don't like too feel defeated, especially over something like this. i thought i have to do this, i have to do this for other women, i have to do it for myself, you know, i have to, you know, set example for my son, and it's very important to me, just to show my courage and do this. >> well you've done that. >> thanks. >> a woman of strength. how did you feel when you read the motion to dismiss your lawsuit and learned of the forced arbitration clause buried in your paperwork? >> i was, i was kind of just taken back because i had no idea what it was. i had no idea something even existed. i thought if, you know, if in the workplace or even just in society in general that, you know, if someone does something against you that is wrong, illegally, or however the case my be, i just thought i would have a right to not let this happen to me or anybody else in the future. i just couldn't -- i was just taken back. i still am, you know, this is very, i just can't believe that people are allowed to disrespect other human beings. >> in fact, you said they stole my right to a jury trial, and your instinct is correct as an american citizen, you have a right. that right was taken from you. to the lawyers, did you feel the same way? did you feel as though your rights were stripped away from you, not just the assaults, the attacks, the rape, but did you feel your constitutional right was taken from you? >> definitely. in lawschool, conservational law was my favorite course and my parents are immigrants here, and one of the things coming from an immigrant people, people value all over the world is our judicial system, i remember my mom saying to me when we were young in america, you have this right, if something goes wrong, you have your right to a day in court, so i thought that was totally taken away from me and no one even knew. >> you, armed with a law degree, had your right taken away from you. >> yes. >> thank you for the question, i just wanted to answer that by addressing something that a lot of people have said here which is that jury trials are very slow and expensive, and i don't actually know what they're like because i haven't experienced one but i can tell you my arbitration was very slow and expensive and the cheapest thing to do rather than trying to unburden our courts by forcing victims like us into arbitration would be to just not assault people and harass people in your workplace and if we had access to jury trials maybe instead of all of us having to go through this very slow process, people just wouldn't act that way as much anymore. >> thank you, very wise words -- oh my time is up. let me quote ruth bader ginsberg in 2018, she said how treacherously we have strayed from the principle that arbitration is a matter of consent, no coercion. how far we have strayed. i yield pack. >> yields back, mr. jones. >> thank you mr. chairman. i also want to thank my colleagues, representative jayapal, chair cicalany, their relationship in legislation to guarantee survivors of sexual assault and harassment their rights to justice in a court of law. most importantly, i want to thank all of you courageous survivors, described accurately by my colleague as four women of strength, and for testifying before us today. no one should have to experience what you all have experienced. no one in your position, or in any position, should have their voice silenced. no one should have their access to justice vetoed by their assailants or by powerful corporations that back them. and thanks to you, we are closer than ever before to ensuring that no one is denied justice again. professor gillis thank you for joining us again to shine a light on forced arbitration. throughout the day we heard harrowing testimony about the retaliation that so often accompanies sexual assault and harassment, as you know, both state and federal laws protecting employees from retaliation from pursuing harassment, yet it is plain those laws failed the survivors here with us today. how does forced arbitration make it harder to enforce protections against retaliation? >> it makes it harder because we never know about their cases. right? you've had the subpoena these women to come here and tell you about these cases, because otherwise they would be barred from doing so by the provisions of their contract. so not only does the public at large not learn about these issues, but regulators, policy-makers never hear about these issues as well. companies are able to sweep these matters under the rug and shield serial sexual predators that often work in these spaces and quite high places. >> thank you. are there any claims you heard today that you would like an additional opportunity to rebut? >> thank you. yes. so many that i won't have time, although just a few, really, because i think a lot of what's been said has been wrong. so first off, just to reiterate what tatiana just said, you know, there's been a lot said about how expensive litigation is. arbitration is expensive too. it's not as if all of a sudden the employer doesn't show up, the employer shows up with all of their lawyers and all of their money, so the structural imbalances that exist in the sort of david and goliath situations we see, true in litigation and true in arbitration so i think it's wrong and misrepresentative to say only litigation is a problem in terms of cost. the other thing i'd like to just point out on a freedom of contract argument which i can only sort of follow, because the protections in this bill, as i read this bill are only triggered when a survivor files a lawsuit. so that means that all, the contract remains, the employment contract is still fully enforceable, the only point is when a survivor files a lawsuit, the survivor has a choice, for whatever reason she, she's autonomous, she can choose, or to go into litigation. i think some of the rhetoric today tried to distract us from that reality but if you read the bill that's what the bill says and i think that's what we should be talking about. there's other things that have been said that i think are mischaracterizations on truths, just distractions, right, this is a pretty easy, i think, question. these women are here to tell us that the system doesn't work for them, they don't want it, and so we ought to change it. >> thank you. i agree. mr. chairman, madam chair, i yield back. >> thank you very much, the gentlemen yields and now the gentlewoman from north carolina, ms. ross. >> thank you madam chair and all the witnesses for being here today. i know it's difficult to talk about this topic but it is so important and you are making a difference in the lives of other women. i'm moves by your bravery, and all that you've done in choosing to share your stories with congress. in the united states, businesses and other institutions too often cover up sexual assault and harassment in order to maintain their reputations at the risk of your reputation. as we heard today, and previously, forced arbitration is one of the key strategies these businesses and institutions use to silence victims of sexual silence and harassment. as long as forced arbitration remains an option, businesses and institutions will be able to abuse this mechanism to put profits and their reputation over yours. and silence survivors of assault and harassment. our laws should work to curb practices that enable the abuse of individuals like those we've heard from today. as you can hear, there are bells, but that doesn't have anything to do with this hearing. i'm glad that tomorrow, we're going to mark up a bill to do just that. i have a couple questions for professor gillits. the first question is what effect does the low survivor win rate in employment arbitration have on company incentives to stop or prevent sexual misconduct? >> i think it must have, i don't work for a company, but i think if i were a company and very few women were even going into arbitration and the very brave few who did, who were able to go it alone and hire a lawyer to bring in arbitration, and they still didn't win, i would start too feel like i could do whatever i wanted and i think that's probably what we're seeing. now i don't know, i'm not invited into the rooms where those sorts of decisions are being made, but i think it's a safe bet that companies are feeling quite brave, and brazen in the ways they could cover up pervasive and systematic sexual assault and harassment and discrimination in the workplace. >> and just as a follow-up to that, do you think it has the same effect on predators, on people who commit sexual misconduct and violence against women? >> again, i'm only inferring from the data that we have, but because, you know -- let me not infer, i have kids, and when my kids don't get in trouble they keep doing the same thing over and over again. the idea is that if you don't hold someone accountable, they're just going to believe that the behavior is actually not so bad and the examples the women here are sort of striking because these were all men in positions of power who retain those positions, in one instance, promoted, which indicates that these predators are learning nothing. right? they're getting a slap on the wrist, there's no public accountability, you know, every company has these sort of, you know, sexual harassment training sessions that i think are probably not well attended and not really processed by the people who need them most. these people are not being taken aside and disciplined or, better yet, fired. right? they're not held accountable for what they've done, so i imagine they too feel that they can do whatever they want. >> thank you. and to our survivors and heroines here, what kind of message do you think this sends to more junior people in your -- in the businesses where you've worked, and to other institutions about what kind of behavior will be tolerated and, please, pipe up as you wish. >> i can start. i think i had in mind those young people when i reported because it was one thing for me to be going through this. i thought about all the girls i've mentored over my life, this, other students, my niece, my friends children, and just thought about, you know, if i, a lawyer, an executive at a company, am not able to feel comfortable speaking up about these things and if i am shot down and attacked for doing that, what will they be able to do? so yeah, i think that what these companies do is meant to silence people and make them not complain and make them keep quiet and just allow the harassment to continue. >> thank you so much and i yield back. >> chair now recognizes the gentle lady from the great city of st. louis, missouri. >> thank you for the chairman for convening this hearing, thank you all as well, i want to sincerely thank each of our witnesses. i want you to know that strength is not unmoving, and it is saving lives. the failures for the conduct and the abuse, the policy violence, this is for safety in your work places. like you, i am a survivor,i understand the trauma, i am, for my colleagues, for standing firm in these insidious arbitrary clause but i am aware of the abuse you have been through, never should have to decide between paying bills and speaking the truth, never should have to fear retaliation for saying what have happened. you should have never had to worry about the impacts of unwanted harassment on personal lives. know that our job as members of congress see you and strand with you, it's to build a society where what you endure never happens again to another person. professor gillis, how could use of arbitration clause prevent companies from soliciting behavior, through reports of sexual harassment. >> thank you for the question, i think that what happens when an employee complains about sexual harassment on the job and starts arbitration and again these are rare situations buts let's talk about those unicorn situations, they become aware there's a problem but that employee comes too forward later and is complaining about the same sorts of pervasive, structural problems in the work place, and at that point, and maybe, or maybe it takes the employee three or employee four, but at some point, one would imagine the employer hearing these stories, understanding the dynamics of the office would come to understand we have a problem and need to do something about the problem. but i think the reality is that employers are forcing these issues into arbitration so that they don't have to be accountable, they don't have to change policies, so they can just do things as they've always done them, business as usual, because there's nothing the arbitrator can do that would force employer to take on any systemic changes in the workplace. so i think these provisions really do stop or halt or prevent any efforts to make a workplace safer for all people. >> yes, thank you, and with that, we understand that is why these sexual harassment allegations need to be in the public sphere. thank you. both of you were sexually harassed or violated by men who, he could get away with anything. this behavior occurs not just in a vacuum nor just overnight as colleagues have mentioned. you haven't been allowed to tell your stories before today. i'd like to use my time to give each of you the opportunity to share what it means to you personally to finally speak publicly about such personal and traumatic experiences, including the retaliation you suffered because of the arbitrary clause in your employment. let me say before you, i'm truly sorry for what you've had to endure. ms. henry. >> i just want to make sure i understand the question. breaking up just a little bit. >> oh, i'm sorry. just being able to share about your personal experience with us today, as the first day you've been able to talk about it publicly, anything you'd like to say, since this is your first time sharing your personal traumatic experience. >> i just hope at some point that the person that did this to me has to feel as humiliated as i feel and how ashamed that i felt during this whole process. i am very honored to be here and i really appreciate having this chance and hopefully, in the future, no one has to endure such horrific acts as we all have sitting here today. so i just hope that he just can feel the pain that i have felt. >> would you also -- >> yes, thank you. on the one hand, as ms. henry said, it's very liberating and at the same time, after so many years of being in silence, i have to say it affects me and i still don't in some ways know that i'm allowed to go on from here and continue speaking without fear of future retaliation, even now. but as others have said, since newton said as well, i am proud and i do feel reempowered to be able to show my niece and my sons and my three beautiful step-daughters that you don't have to accept when you know the rules are stacked against you and you can try to change the rules and i hope that we can do that here today and i'm just in awe of all the other women there today and hope to know you better and know we can all heal from this but the healing will come from action, to protect us and protect future survivors and victims. thank you. >> thank you, and with that, i yield back. >> gentle lady yields. this concludes today's very powerful hearing. i want to thank the witnesses again for sharing your incredible stories, and to express, yet again, how we are standing with you in this moment and moving forward. without objection, all members will have five legislative days to submit additional written questions for the witnesses or additional materials for the record. without objection, the hearing today is adjourned. adjourned. >> c-span is your unfiltered view of government, funded by these television companies and more including comcast. >> you think this is just a community center? >> no, it's more than that. >> calm cast partnering with thousand community centers so students from low income families can get the tools they need to be ready for anything. >> comcast supports c-span, along with these other television providers giving you a front-row seat to democracy. >> and now, the u.s. supreme court hears a case involving fbi surveillance program conducted on a muslim community in irvine california, fbi versus californ. this oral argument is just over two hours. >> today's orders have been duly entered and certified and filed with the clerk. we will hear argument first this morning in case 2828 the federal bureau of investigation versus fazaga. >> mr. chief justice and may it please the court the state's privilege is firmly grounded in the constitution and common law and is critical to safeguarding national security. the 9th circuit did not disagree with the district court's conclusion that the information concerning the foreign intelligence investigation at issue here falls within that privilege. the ninth circuit instead held that section 1806f of

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