WASHINGTON (CN) — The Senate Judiciary Committee on Thursday approved legislation to crack down on the use of forced arbitration in the workplace and expand legal options for employees facing age discrimination.
The upper chamber’s legal affairs panel voted 15-6 to advance the bipartisan Protecting Older Americans Act, which was introduced last year by a group of lawmakers led by South Carolina Senator Lindsey Graham and New York Senator Kirsten Gillibrand.
The measure, which now heads to the full Senate, would invalidate the forced arbitration clauses present in many employee contracts that allow companies to sidestep litigation in age discrimination cases.
“I think there’s a need out there to change the law because the playing field is so unlevel,” said Graham, the Republican ranking member of the Judiciary Committee, during a bill markup Thursday. “More and more Americans in the workforce are aging, and I want to make sure that if they feel they’re wronged, they have a place they can go to make their claim.”
Illinois Senator Dick Durbin, the panel’s chair, concurred.
“Older Americans who face age discrimination should have the choice whether to bring their claims in court or pursue arbitration,” he said.
Graham’s legislation is part of a broader push in Congress to address forced arbitration. The widely used practice is aimed at shielding companies from litigation by employees or consumers by requiring them — usually through employment contracts or terms of service — to settle disputes through a third-party arbitrator rather than in court.
President Joe Biden in 2022 signed a bipartisan law exempting victims of sexual assault and harassment from private arbitration. But advocates for reforming the practice say Washington should take things even further.
During an April hearing in the Judiciary Committee, experts explained that forced arbitration clauses have become pervasive and said they trample on Americans’ right to seek justice in the legal system.
“Employees have no idea that signing on the dotted line and accepting forced arbitration can strip them of their rights to future justice,” testified former Fox News host Gretchen Carlson, who told lawmakers that her high-profile suit against the media company’s former chair Roger Ailes could have easily been swept under the rug by such a provision.
Carlson was in the chamber Thursday while senators voted on the age discrimination bill.
Although the legislation attracted bipartisan support, some lawmakers, particularly Republicans, expressed their reservations.
Texas Senator John Cornyn argued that, while he supported efforts to give victims of age discrimination access to justice, there is still a place in society for private arbitration.
Arbitration, he said, provides an alternative for people seeking to settle disputes but who can’t afford to hire a lawyer or go through litigation, which can become a costly affair.
“I’m concerned that this bill is a blunt instrument that seeks to achieve a certain outcome which I agree with,” Cornyn explained, “but I do think there are consequences that I think should cause us all concern.”
The Texas Republican worried that approving legislation barring forced arbitration for age discrimination could be “a slippery slope” that chips away at alternatives for resolving legal disputes.
“That may well be the only way that people with ordinary means can ever have their dispute resolved,” said Cornyn.
The lawmaker ultimately voted against Graham’s measure, alongside Utah Senator Mike Lee, Texas Senator Ted Cruz, North Carolina Senator Thom Tillis, Arkansas Senator Tom Cotton and Tennessee Senator Marsha Blackburn.
New Jersey Senator Cory Booker meanwhile pushed back on the idea that tightening restrictions on forced arbitration could have negative consequences, pointing to the implementation of the 2022 sexual harassment law.
“There was so much doom and gloom predicted about how awful this would be,” he said, citing concerns from some lawmakers that doing away with forced arbitration for sexual assault and harassment claims would lead to a deluge of frivolous lawsuits.
“Here we are, two years later … and we haven’t seen that,” Booker said. “What we have seen is that people who experienced awful types of discrimination have had justice.”
But the New Jersey Democrat said he was sad to see lawmakers moving ahead with an arbitration bill without addressing racial discrimination.
“Are we saying that there aren’t people suffering in silence, or cultures that persist or people forced into gag orders because of discrimination against race?” Booker said. “This is a good day for America, but when it comes to issues of race, we are failing to have constructive conversations.”
The lawmaker drove home his point by offering and immediately withdrawing an amendment to the age discrimination bill that would have added language about racial discrimination. He later voted in favor of the bill.
As of Thursday afternoon, the Protecting Older Americans Act had yet to be added to the Senate’s floor calendar.
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