By Tamia Sutherland
The House Committee on the Judiciary held a Nov. 16 hearing on arbitration’s effects on victims of sexual violence and harassment. Chairman Jerrold Nadler, D., N.Y., presided over the hearing, “Silenced: How Forced Arbitration Keeps Victims of Sexual Violence and Sexual Harassment in the Shadows.”
A second hearing followed the next day, marking up a bill introduced to restrict the use of arbitration in sexual harassment employment cases, and sending it to the full House, where it awaits action.
In his opening statement at the first hearing, Nadler said that “arbitration was originally developed as an alternative to the court system, for parties of relatively equal bargaining power to enter into voluntarily.”
But, he continued, “forced arbitration” clauses, seen in “take it or leave it contracts,” have grown in popularity between large corporations and individuals. Nadler asserted that forced arbitration is most problematic in the workplace. He provided data projecting that by 2024, 80% of private-sector employees will be required to sign an arbitration clause when accepting employment. Moreover, he stated that employers prevailed over employees in 98.1% of arbitrations.
Notwithstanding the statistical information, Nadler explained that the purpose of the hearing was to examine the “true human toll of forced arbitration, [based on] stories that cannot be distilled down to a number or a statistic.” He set out the theme of the hearing by declaring arbitration a system that is “fundamentally unjust,” but noting that the decisions in the matters involving the witnesses would not be reversed. He added that the witnesses’ appearances were to provide a voice for other victims of sexual harassment.
Ranking minority committee member Jim Jordan, R., Ohio, also provided an opening statement in which he explained that the committee must ensure that “pathways that Americans have to resolve their disputes function properly and are fair to everyone.” He added, “Arbitration should be as fair as court.”
He noted the declining number of civil cases that concluded in a trial. Jordan said that if the arbitration system is not being used properly, there is an obligation to fix it to benefit the parties to the dispute.
Many of the witnesses who provided hearing testimony are survivors of sexual harassment and/or sexual assault who reported that they were forced into arbitration agreements based on their employment. Chairman Nadler explained that the witnesses faced off in arbitration with their employers, who had the opportunity to select “the judge and the jury, truncate the discovery process, choose the law applied, and prevent all appeals.” The individuals who provided testimony, Nadler reported, were only allowed to do so because a congressional subpoena has compelled their testimony. Here is the witness list:
- Eliza Dushku, actor/producer and philanthropist;
- Tatiana Spottiswoode, first-year Columbia University Law School student and former business analytics associate at Afiniti Ltd., a Hamilton, Bermuda-based software developer;
- Anna St. John, president and general counsel at Washington, D.C., public interest law firm Hamilton Lincoln Law Institute;
- Andowah A. Newton, vice president for legal affairs and head of litigation for LVMH Moët Hennessy Louis Vuitton Inc.;
- Sarah Parshall Perry, Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation, a Washington, D.C. membership think tank focusing on conservative issues;
- Lora Henry, a sales associate for Wacom Mitsibushi in Canton, Ohio, and
- Myriam Gilles, the Paul R. Verkuil Chair in Public Law at the Yeshiva University’s Benjamin N. Cardozo School of Law in New York.
Eliza Dushku began the witness testimony, noting that she has worked in the entertainment industry on high-profile films and television for nearly 30 years. She also identifies as a victim and survivor of sexual harassment in the workplace—she was fired and says she was silenced when she attempted to speak out.
She told the story of being aggressively pursued by CBS to co-lead in a 2017 show, “Bull,” in which she said her character was written with her in mind, and which required a six-year commitment to playing a strong, confident lawyer. But within the first week of her new job, she reported that she became the brunt of crude sexualized, lewd verbal assaults and suffered near-constant sexual harassment from her co-star, Michael Weatherly, who also was the show’s co-producer.
Dushku says she wasn’t physically harmed, but the effects of verbal abuse have been long lasting. Examples of some of the comments endured included being called “legs” and being told she would be taken to a “rape van” where “long phallic things” would be used, or she would be “take[n] over his knee and spank[ed] like a little girl.” Additionally, she reported Weatherly told her that his sperm were “powerful swimmers,” and he shouted out loud on set that he and his buddy wanted to have a “threesome” with her.
The comments were not scripted lines. They were made in front of the cast and crew members, and sometimes while the cameras were still rolling. She stated that her co-star’s comments emboldened other male crew members. One said to her, “I’m with Bull, I want to have a threesome with you, too, Eliza,” between scenes.
Dushku reported that she was horrified and became physically nauseous but, she said, her drive to succeed was strong, and she loved the role, so she tried to maintain her professionalism. And as a result, she said, she received positive reviews from the showrunner and other CBS employees and officials.
After speaking with her manager about the work conditions, Dushku said that she asked her co-star to be her ally and “tone down some of the sexualized comments.” His response was that “no one is more respectful of women than me.”
But then he texted the head of CBS Studios that Dushku was “humor deficit,” who she reported replied that Dushku made the show better. Nevertheless, Dushku was fired the next day and told she was only in three more episodes despite the six-year deal.
Despite her longevity in the entertainment industry, Dushku said she never understood the mandatory arbitration clauses in her contracts. In this case, the harassment of Dushku was caught on camera, in tapes CBS provided in a poorly constructed attempt to defend itself. Still, Dushku told the House Judiciary Committee that no one will see the tapes due to her signing a binding arbitration clause.
Dushku concluded her testimony by asserting that there will never be real justice for her and for countless other victims of sexual harassment who unknowingly signed binding arbitration clauses.
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Tatiana Spottiswoode explained that she first met Zia Chishti, the founder of Invisalign and CEO of Afiniti, when she was around 12-13 years old, as a business associate and friend of her father’s. When Spottiswoode was a college senior in 2014, Chishti, then 43, deceived Spottiswoode by insisting that she attend a ski trip to meet a nephew that she later discovered didn’t exist. Spottiswoode believes the trip was an attempt to groom her and introduce her to “an extravagant lifestyle.”
When Chishti explained that he had feelings for her, she rejected him but agreed to date him nine months later. After 10 weeks of dating, Spottiswoode ended the relationship. ‘
Months later, Spottiswoode was offered a job with an annual $60,000 salary, and she was assured Chishti did not expect a sexual relationship. In April 2016, Spottiswoode signed an employment contract that included an arbitration agreement. And over the next 18 months, Spottiswoode was pressured for sex and punished or humiliated when she did not comply. Chishti, she said, also retaliated by ignoring her for months after her rejection.
Chishti fixated on another young female employee on a Dubai business trip, according to Spottiswoode. After the employee was violated by Chishti after a night of drinking, the other young employee was flown home and paid a secret settlement, according to Spottiswoode’s testimony. Afiniti did not take any steps to prevent other women from this behavior, she reported, noting that in all interactions with Chishti she made clear that she did not want to have a sexual relationship with Chishti. In a January 2017 email, Spottiswoode wrote to Chisti: “three times you have behaved inappropriately and with my explicit non-consent.”
Chishti only became more hostile. He called Spottiswoode petulant and told her to fix her behavior in writing. After expressing concern to Chishti, Spottiswoode received pornographic emails describing Chishti’s rape fantasies. On a business trip to Brazil, where Spottiswoode had business accounts, Chishti forced sex with her, and beat her. Spottiswoode’s was covered with scratches, cuts, and contusions; gruesome images, including choke marks, were submitted in the hearing (and are available at the committee hearing link below).
According to Spottiswoode’s testimony, Chishti then initiated arbitration against Spottiswoode. He filed suit against her father, who had quit his employment with the company when she returned from Brazil the day before her deposition was scheduled.
In May 2019, an arbitrator ruled that Spottiswoode was sexually harassed. Chishti’s Big Law representation, she told the House Judiciary Committee hearing, have tried to get Spottiswoode to vacate the arbitration award by offering her money and to drop the suit against her father, and pay him $1 million. Spottiswoode’s father’s arbitration was continuing as of the House Judiciary Committee hearing, she said. Spottiswoode she said she is terrified about the ramifications of her testimony because forced arbitration gave Chishti the power for continuing a “campaign of retaliation.”
Zia Christie Chishti stepped down from his role as Afiniti CEO three days after the hearing, but denied all of the allegations. Rimal Farrukh, “She Wanted to Accuse a Celebrated Techie of Sexual Assault But Couldn’t. Until Now.” Vice.com (Nov. 29, 2021) (available at https://bit.ly/3sBblvu).
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Committee witness Anna St. John of the Hamilton Lincoln Law Institute argued that removing arbitration is not in the best interests of those subjected to sexual harassment and assault. St. John explained that studies show that arbitration provides a faster and less expensive way to resolve claims against employers and to obtain greater relief because (1) arbitration is more flexible, (2) involves less burdensome discovery and traditional rules, and (3) organizations support arbitration proceedings to increase accessibility and fairness for individual claimants, and which can lower the costs of claims.
St. John argued that secondary benefits include corporations having more funds for employee benefits or lowering costs to consumers. Furthermore, St. John stated that the U.S. Supreme Court and Congress have expressly recognized the benefits of arbitration.
St. John said that she believes that taking away arbitration for victims is a “top-down, heavy-handed approach that denies them the advantages of arbitration as a means of adjudicating their claims.” Moreover, she believes that overburdened courts are slow-moving, which in turn benefits attorneys, not victims. And class actions do not benefit sexual assault victims because their experiences are often individualized, according to St. John.
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Other testimony included the Heritage Foundation’s Sarah Parshall Perry, who testified strongly in support of arbitration as support for helping congested court dockets. She said that “the basic premise of all limiting legislation that arbitration is somehow unfair to or bad for employees and consumers is false. The evidence shows precisely the opposite.” She concluded noting that the elimination of the use of arbitration ultimately could hurt victims of sexual harassment and violence.
During the questioning that followed testimony, Perry repeatedly said that more scrutiny should be made of confidentiality provisions and nondisclosure agreements, the use of which she said could be “a particularly pernicious setup” when teamed with an arbitration agreement. But she warned later during questioning that reforms on confidentiality and NDAs can’t become “a piecemeal slice-and-dice of the [Federal Arbitration Act].”
Prof. Myriam Gilles discussed H.R. 4445, the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” which was introduced and debated the day after the hearing. The bill would bar predispute arbitration agreements or predispute joint-action waiver in sexual assault or harassment disputes. Gilles focused on the secrecy aspect of arbitration in her support of the bill. But during questioning late in the hearing, Gilles made clear that the target is arbitration and court-waiver provisions as a condition of employment, noting, “Post-dispute arbitration is fine.”
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The House Judiciary Committee marked up the bill the next day, Nov. 17. The bill prohibits the validity or enforcement of any pre-dispute arbitration agreement or a pre-dispute joint-action waiver with respect to a case “which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”
The terms “sexual assault dispute, “sexual harassment dispute,” “sexual assault dispute,” “pre-dispute arbitration agreement” and “pre-dispute joint-action waiver” are defined in detail in the bill. The proposed legislation, however, says nothing about NDAs, but it excepts application to collective bargaining agreements, which often depend on arbitration.
The bill was reported out to the full House at the markup hearing, 27–14, with four Republicans joining the majority Democrats in passing the proposal.
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The Nov. 16 House Judiciary hearing, “Silenced: How Forced Arbitration Keeps Victims of Sexual Violence and Sexual Harassment in the Shadows,” can be viewed in its entirety at https://bit.ly/3wTDLkf. The link includes the biographies, written testimony, and evidence submissions of each of the hearing witnesses. The Nov. 17 House Judiciary markup, with role-call votes on the bill and proposed amendments, as well as more supporting submissions, is available at https://bit.ly/3FFNw9p.
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The author, a second-year law student at the Howard University School of Law, in Washington, D.C., is a CPR 2021-22 intern.
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