The Trump Administration and Congress are about to roll back regulations providing important worker protections, including the right to fight discrimination and sexual harassment in court.
Last year, the Obama Administration issued regulations implementing an executive order (“Fair Pay and Safe Workplaces”) requiring companies bidding on federal contracts worth $500,000 or more to report violations of labor and employment laws addressing workplace safety, discrimination, and minimum wage and overtime. Significantly, the regulations also prohibit companies with contracts of $1 million or more from forcing employees to arbitrate sexual harassment and other discrimination claims.
Forced arbitration provisions are increasingly common in employment agreements. They prevent workers from going to court to enforce their rights, and help hide sexual harassment and discrimination as a result. Forced arbitration means that when a worker comes forward to report discrimination or harassment, she is sent to a private proceeding, almost every aspect of which – including the arbitrator – is usually chosen and paid for by the employer. The arbitration proceedings, the filings and decision are secret.
The House of Representatives recently voted in favor of a resolution that would repeal the Fair Pay and Safe Workplaces regulations, including protection against forced arbitration. The Senate will vote on and likely approve the resolution any day now, and President Trump has said he would sign it into law.
The House used the Congressional Review Act (CRA), a law which allows Congress to roll back recently finalized federal agency regulations. But the CRA goes much farther than that. Not only is the regulation repealed, the agency also is barred from reissuing the regulation, or issuing a substantially similar one, in the future.
This is terrible news for all workers, but especially for women. Women are more likely to work in low-wage jobs, and are vulnerable to wage theft, sexual harassment and other forms of sex discrimination on the job, or retaliation when they try to unionize or enforce their rights. Sexual harassment is rampant, particularly in industries dominated by low-wage jobs, but is vastly underreported. Many workers are already afraid to report harassment, fearing that they won’t be believed, that they could lose their jobs, or that the employer won’t do anything about it. Forced arbitration removes any incentive for workers to come forward, allowing harassers to continue their behavior without consequence and victims to be silenced.
By voting to repeal these regulations, Congress is ensuring that workers have to sign away their right to a day in court in order to get a job, and that employers can continue to sweep sexual harassment and discrimination under the rug.