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this hearing from the senate judiciary committee runs one hour and 40 minutes. this hearing, small print, big impact of forced arbitration will come to order. the seventh amendment to the constitution guarantees the right to a jury trial, however, for tens of millions of americans this constitutional right is an empty promise.

instead of having their day in court, people are forced into arbitration by the fine print buried deep in employment contracts, manuals and terms of service. i would like to turn to a brief video featuring three individuals who were denied their day in court as a resort of forced arbitration clauses that they did not know anything about. >> what is forced arbitration? >> basically you are giving up your right to take a dispute to court. this is a constitutional right you have in your giving it up even before you know there is a dispute. >> arbitration clauses are typically buried in a fine print of a product manual or website. most people do not even realize they agree to them. >> the use car you bought seven years ago has hardly ever left left the garage there was a into problem that they refuse to fix and then to his dismay he agreed to a binding arbitration it could not sue. >> i did not even know what an arbitration agreement was. i was beside myself that i lost

my right to court. >> i am a lieutenant commander in the navy reserve and federal employee i was later forced to arbitrate my discrimination claim when i return home. in november 2012 i received orders to deploy to afghanistan for 12 months. on my last day of work my colleagues greeted me with a standing ovation. at noon they held a surprise party in my honor. around 4:45 the same afternoon i was called into a meeting in the hr department where i was fired and told my position would not be available to me after my deployment. >> i am a former tesla employee. if i did not sign an arbitration then there was no opportunity to continue with the job. i had racial slurs shouted at me . i had to give myself a pep talk every day and i dreaded it . i needed my paycheck. i was often blamed for the harassment i received. the use of force arbitration

gives up accountability. >> forced arbitration is pervasive it affects nearly 60 million workers with an estimated 825 million consumer arbitration agreements were enforced in 2018. that number has undoubtedly got up. if you signed a cell phone, signed up for credit card, botta mattress, television, cloudless products you likely agreed to arbitration. don't be embarrassed if you're just learning that you likely waived your constitutional right to bring a claim in court. you are part of the 90% of american consumers who use popular products and have no idea they signed up for force arbitration. all of us quote, agree to force arbitration when we click that button or check that box accepting terms of service. we may have no idea we are agreeing to this when we sign up. the rules governing arbitration often limit the information victims can get from

corporations making it more difficult to prove their claims. the process is overseen by arbitrators who can be biased in favor of one side or the other, usually corporations, we want to ensure a steady pipeline of future work. those arbitrators are not bound by precedent and it is only subject to limited judicial review. the problems are compounded by the secret nature of this process. no more troubling was this in cases of sexual assault and sexual harassment. for years predators preyed upon women without fear because they or their employers would hide behind confidential arbitration and sweep it under the rug. thankfully that is no longer the case. brave survivors who are with us today step forward to break the cycle of abuse. as a result of her unrelenting advocacy and determination to do something on a bipartisan basis.

be forced arbitration of sexual assault and sexual harassment was signed into law by president biden in march 2022. as the name suggests this law prohibits forced arbitration in cases of sexual assault or sexual harassment. while this marks a significant achievement there is more to be done. we will hear from joe and grace, force arbitration used to cover up illegal age discrimination. the same is true of racial discrimination abuse and nursing care and countless other homes. joanna and others deserve their day in court for that is what the constitution promises, that is what congress should provide. i want to thank ranking member graham and his staff for working with us to select today's witnesses. before i turn the microphone over to senator graham, i want to congratulate south carolina and iowa for their terrific basketball experience over the last two weeks.

senator graham. >> thank you. it was a heck of a ballgame. caitlin clark was a phenomenal college athlete. personally, i'm glad she's going to the pros. she beat us last year, but we came back. it was a great game. what are we trying to do here? we are trying to level the playing field. i cosponsored the bill about sexual harassment and sexual assault employment contracts. when you go to work for somebody you sign an employment contract, you pretty much take it or leave it at most employment contracts require mandatory arbitration, binding arbitration, it is not really a level playing field, neither is sexual harassment or sexual assault. i think most americans believe you should not sign away your rights to have your day in court, that is too personally important and we passed a law

to say that you cannot require binding arbitration and employment contract and you cannot deny the employee their day in court. ms. carlson was instrumental in that. now, we have the protecting older americans act. what is that all about? a lot of people are discriminated in the workplace, in my view, because of their age because it is cheaper to have a younger employee. we have seen that, there are articles about companies that routinely engage in these kind of practices where a older employee is under a lot of scrutiny and a lot of harassment. the next thing you know they are terminated. what i want to do is make sure that if you feel like you have been discriminated against based on your age, you can have your day in court. the burden is still on you to prove that you were.

the individual involved will have plenty of defenses, i just think forced arbitration in that situation does not serve the public interest. i hope, after this hearing, we will have a vote on protecting older americans act that will do away with finding arbitration in employment contracts. finally, arbitration is okay, if you are seeking advice, in an investment business trying to get some advice for an investment, it's a business relationship, two companies want to agree to arbitration, there is a level playing field, that is not my problem. there is plenty of space in the american economy for arbitration . what we have seen is employment contracts pretty much written to the advantage of the employer in areas like sexual harassment, age discrimination and a few other

areas that have gotten out of hand and i want to level the playing field. thank you for having this hearing. >> thank you senator graham. we both agreed that the floor witnesses, gretchen carlson and . welcome back. former cbs news and fox journalist covering women's rights. or 2016 sexual harassment lawsuit was one of the first high profile cases of the me too movement. in 2019 70 she cofounded the, to advocate for a ban on mtas and force arbitration in employment contracts. marion gillis, did i pronounce it correctly? law professor at benjamin school of law. the professor specializes in, and written extensively on arbitration. welcome back. >> victor schwartz cochair of

the public policy group. mr. schwartz served as law professor and dean of the university of cincinnati college of law before his current position. he previously testified before the committee and we welcome him. joanne grace of ohio has served her community in a variety of nursing homes since 1976. including as a floor new year's , supervisor, manager and directing of nursing services. thank you for joining us. i will swear in the witnesses and each has five minutes for an opening statement and then five-minute rounds for each senator. i asked the witnesses to please rise. raise your right hand. do you solemnly swear the testimony you are about to give is the truth, the whole truth and nothing but the truth.

>> thank you. >> ms. carlson, you are first. >> thank you so much chairman durbin, ranking member graham and distinguished members of the committee. thank you for letting me testify about my forced arbitration and what i'm doing to make the workplace safer. in 2016 i found the courage to see one of the most powerful men in the world, former fox news chair and ceo for a toughest decision of my life. after they fired me i said to myself, if i do not do it, who will? my story made headlines, but it could have easily been swept under the rug by countless others because of the force arbitration clause. no one starts a new job expecting harassment, i know i didn't. few people can walk away from a job because of the fine print. i do not care who you are, most

people have no idea what force arbitration means. in my case it showed up in my last contract with fox. i was told not to worry because it was quote, becoming the way of the world i could not have imagined how true that would prove to be. employees have no idea the signing on the dotted line and accepting forced arbitration clause can strip them of their rights for future justice >> back then i would have never known that my story would propel congress to start examining arbitration in a meaningful way. things to women and members of this committee and other champions and congress hailing from both sides of the aisle. survivors of sexual misconduct can now seek justice. witnessing the president signed the ending forced arbitration of sexual assault and sexual harassment act of two years ago was one of the proudest moments of my life. courage is contagious and this new law is having significant impact. a bartender at a country club who alleged she was sexually harassed by multiple members was able to bring a harassment

lawsuit against her employer last year. breed even though her employer try to silence her, the request was denied because of the new law. a judge in texas also declined to, after employee sidney watson alleged harassment. watson's case can also continue in court things to the new law. while i feel in this gratitude towards his committee for restoring the rights of sexual misconduct survivors like these. i am sure than ever before that all americans deserve this right . it is why i am a champion of the new bipartisan force arbitration bill protecting older americans act cosponsored by senators graham and gillibrand endorsed by senator durbin and senator grassley. thank you senator booker for leading the effort to leading the ending of forced arbitration of race

discrimination act. this gives them a choice on whether or how to seek accountability. a choice that should not be made by company or the government. you will hear from joanne about age discrimination in a moment. let me tell you about two former tesla employees, jasmine wilson and. they repaid reported racist behavior at the california tesla plant. graffiti that red and the n word. no action was taken when they went to hr and they were forced into arbitration. stephanie weaver's grandmother went missing at a nursing home after being left unattended. when the home called her to come look for her grandmother, she found the dismembered body had been eaten by an alligator in the nearby pond. stephanie fought all the way to the south carolina court of appeals after the home try to force her into arbitration. if your grandmother can be eaten by an alligator because she was not properly cared for, and a major employer like tesla can be accused of rampant race

discrimination, and in both cases force arbitration eliminates justice, something must be terribly wrong with our system. for the naysayers out there, the u.s. chamber claimed all would break loose if you let women file assault and harassment cases in court, there would be a slew of new cases and companies would go out of business, none of that has happened. instead, survivors are simply empowered with a choice. after my story at fox news, a close friend said to me, gretchen, something good will come of this. at the time i could not see it. something great has come of all of this. thank you for holding this hearing. i hope when you consider the horrible stories currently being allowed to flourish within the secrecy of forced arbitration, you will agree that all americans deserve this choice. thank you. >> thank you for stepping up. america is better because you had the courage to step up and

say things which were painful. thank you, again. >> thank you. >> professor gillis. >> chairman thurman, ranking member graham, distinguished members of the senate judiciary committee. thank you for inviting me to speak about the harmful effects of force arbitration clauses that are imposed on all of us to take it or leave it contracts that take cases out of the public court and into secret one-on-one arbitrations. i say all of us. because as we sit here today, everybody in this room is subject to forced arbitration clause, everybody in the country is subject to forced arbitration clause in some aspect of their life. as senator durbin noted use a credit card to open a checking account, use a cell phone to put your mom in a nursing home, you will sign away your freedom and you have to decide for yourself how to exercise your rights. forced arbitration takes that power from each of us and it

handed over to powerful corporations. what this means, when the force arbitration clause is in effect, americans have no way of getting justice under federal laws that would otherwise be enforced in court, whether it be consumer protection, antitrust, privacy, or discrimination laws. forced arbitration replaces the law that this body enacts with private legislation written by corporation into the fine print of contracts that nobody reads and nobody can negotiate. when you grasp the enormity of the problem that we have come to talk about today and consider recent cases where there was no forced arbitration clause in effect and you think about the injustices that would still be happening if the case is had been blocked by forced arbitration i think we have all heard about the massive antitrust case brought against the real estate industry which recently resulted in a jury verdict in favor of home

purchasers. a settlement that promises to change the way americans buy homes by reducing commission and opening up competition among agents. it is total happenstance, senators, that most real estate brokers simply do not impose arbitration on the clients. if they had come at this historic and industry changing settlement would never have come about. since we have been talking about protecting older americans act, i want to tell you about another case from 2016, a group of hewlett- packard employees sued alleging the company violated the ada by terminating them because of their age. about 140 of the laid off workers signed releases that included forced arbitration clauses, another 320 refused to sign. those workers were allowed to continue in court were last week a judge agreed to a settlement for $18 million, the

highest settlement ever recovered in a age discrimination suit. while the workers had the misfortune of signing releases of forced arbitration clauses are out of luck, that makes no sense. i can go on and on, there are many examples like this, the point is this, congress enacts laws to protect americans. many of those laws rely on their enforcement of courageous individuals bringing lawsuits, challenging, harmful, and sometimes long-standing practices. forced arbitration denies victims the right to bring such challenges and it denies us the ability to know what's going on in the marketplace and the workplace. for what? why has this unjust regime of forced arbitration developed? it is not, as the chamber would tell us, forced arbitration is cheaper, faster, or easier, that's not it if it were, companies would not have to force us to do it. instead companies impose forced

arbitration to squelch cases and immunize themselves from public accountability. i think the true motivation is glaringly obvious and her recent phenomenon of mass arbitration in which the victim simultaneously file thousands of arbitrations, basically forcing corporations to face claims of wrongdoing and make good on their contractual thomases to pay the cost of large numbers of single file claims. no surprise, i think, that just about every company hit with a mass arbitration has gone running to court seeking relief from their own contract. also no surprise that the chamber of commerce characterizes mass arbitration as extortion. meanwhile, federal judges faced with faced with these cases:poetic justice. here is the point, whatever you think about it, the resistance of these companies have

individually arbitrated these cases after unilaterally forcing provisions on their workers and consumers make clear that forced arbitration was never about fairness or efficiency, but about suppressing worker and consumer cases. thank you so much. >> thank you professor. professor swarts. >> today is april 9th. i just want to mention on a personal note, it is my dad's birthday, he died when i was 10, i do not want to goof up too much today in case he is hanging around somewhere. there are a lot of myths and truths about arbitration. a couple of things that i want to mention, because i had a minister who taught me something out of context was pretext. you have to put arbitration in context with litigation, which

i know about. i have lived it for 50 years. i do write a casebook that a lot of people have seen. the cost of arbitration is far less than litigation. we have data that shows that. it is much cheaper. in litigation there is a lot of delay, real delay. it may take a year, more than a year for a case to be heard, with arbitration you are heard right away, that is an important, important thing. claimants benefit because it is simpler. you cannot have to go to court, after disease nothing is worse than being in the negation, and i know what it is on both sides. you don't have to go to court, you don't have to disrupt your family and that is a definite benefit because you work on

your own time. we will send the data to show the amount that you receive in litigation is not less than you would and arbitration or the reverse. not at all. i mentioned the disruption that occurs with your life in litigation, it is just not good. then getting and interning -- and attorney. it is almost impossible to get an attorney today unless the contingency fee is very, very substantial. a $200,000 case, you are not going to get a plaintiffs attorney unless he or she wants to volunteer. not on a contingency fee system . it is proper. they end up getting $100 an hour and they do not want that you cannot get an attorney, and all you have is arbitration itself.

there are a lot of things said about arbitration, there can be debates about it, but this little fellow's point of view. in most instances, it really is not forced. if you want to buy a phone, a lot of the phone companies require you to sign an arbitration agreement, not all there is often an alternative. or you can say i do not want to do it at all. sometimes it is small print in a big long contract. if it is too buried and cannot be seen courts deem that unconscionable. they have the power to do it and they do it. if the agreement has things that are just and proper, state courts hold them in proper under unconscionability. about confidence. you can tell any public

official about your agreement, you can tell the result, gag orders are strictly by courts. since the committee is holding hearings it is helpful because more state courts are doing that. that is an important thing. some people say, do it post arbitration, or post-dispute, that this network because each side tries to rig it in its own way. businesses don't prevail at a greater length with arbitration versus litigation. i would be very happy to take your questions. i see the orange light. for 50 years i have never gone beyond the orange light. thank you. >> you are the first witness who can say that. thank you very much, professor. ms. grace.

>> chair durban, ranking member graham. -- sorry procurement durban, ranking member graham, distinguished committee members, it is a honor to be here. thank you for giving me the opportunity to tell my story on how i was wrongfully terminated because of my age and how my former lawyer is using forced arbitration to steal my rights, my voice and even my dignity. i started my career as a registered nurse in 1976. i dedicated my whole life to others. after working hard for almost 50 years as a floor nurse, manager, and director, my healthcare system was acquired by stewart health system. shortly thereafter i became a patient advocate. i loved being a patient advocate . it allowed me to speak up when a patient was not being heard. this is the same purpose for which i am here today. to speak for those who are

being silenced and forced arbitration. when stewart hired a new director of nursing in 2020, the overt age started, what was a second home to me became a hostile work environment. older employees are being replaced by younger employees. at least once a week the director of nursing was say something to me like, why do you want to keep working at your age? or, why aren't you retiring? she openly talked about my age and even a medical condition in meetings just to embarrass me. hr dismissed my discrimination. you know what hr told me? they called me a old warrior. joanne you are an old warrior. old. old. why would a hr representative feel so brazen and shameless as to out right call me old to my face?

when i was out of work for covid-19, stewart posted a new supervisor job online. the job description made it very clear that it was my position, just a different title. two days after i returned to work, one position was reduced, one. it was mine. because my position legally needed to be filled the hospital hired someone in their 20s who did not even meet the minimum experience requirements for supervisor. my reduction was a lie to force me out. i was devastated. in getting rid of more experienced nurses like myself at the hospital was putting patient safety at risk. i hired an attorney to sue stewart for age discrimination. it is not about the money. i love being a nurse. i want to protect other nurses and keep patients safe. i hope that the

lawsuit can effectuate that change. stewart moved by forcing us into an arbitration agreement, even though i had never signed any agreement. my employer pointed to my name on an xl list as having attended a training about arbitration. i did not even attend the training. they said by continuing to work after that training session i lost my right to hold them accountable in court. the wickedness did not stop there. the so-called forced arbitration agreement allowed me to only call one witness from steward and limits me from calling on and asking for 25 documents. in court, i could depose the director of nursing, the hr representative, the decision- makers and all of the witnesses that witnessed my age discrimination. before signing

arbitration i can only call one witness. they claim this agreement allows the employee employer to pick a pool of potential arbitrators which is mainly defense oriented attorneys. this means a defense oriented attorney is going to decide my case. if i somehow make it through this rig process and went back, no one will know and no change can ever happen. as long as congress allows companies to sweep accountability under the rug, they will continue to do just that. i hope you now understand why a hr representative felt so brazen and shameless to call me old. the ability to use forced arbitration empowers companies to violate the law, while hurting nurses and patients as more older americans remain in the workforce, our rights need to be protected. older workers should not be forced into

retirement, nor into forced arbitration. chairman durbin , ranking member lindsey graham, committee members, thank you for listening to how allowing forced arbitration really has destroyed my dignity. legislation is needed to end this practice and i'm happy to answer any questions you may have. >> ms. grace, thank you for being here. on behalf of a institution filled with seasoned warriors, we stand shoulder to shoulder with you in this effort. thank you for telling your story for the country to hear. it is very important. i take it from what you said, you never signed, checked a boxer anyway indicated that you are part of a forced arbitration agreement? >> no, i did not. in fact, as part of management at the director level, through part of steward health , i saw

other people go who were older, they signed the arbitration paperwork. at the end, when they were terminated and returned for some kind of monetary agreement that they can receive, i never signed that and i would never advocate for anybody to sign that. >> mr. schwartz , this is a legendary moment in my life. i have discovered a man who is the author of, a textbook which i purchased in law school at georgetown quite a few years ago. i was impressed that only not only the contents but the weight of that book. i carried it around all year trying to learn from it and i salute you for being the co- author of one of the most famous legal textbooks in america. i am glad to learn you did

this. may i ask you, following up on the question with ms. grace -- >> i just want to thank you, sir. i can tell you one thing about that book, if you put it on the floor in your kitchen, you can reach the top shelf. a lot of people do not know that. >> that is good practical advice. recently, a company called roku , which is a streaming service, updated its dispute resolution terms. i pulled out the contract that they offered to people who want their services. despite not providing a description, the company would not allow you to continue using a roku device to stream your favorite shows unless you agree to the terms of this contract. assuming the user took time to read it, it is pretty simple, they say. any disputes between us, the consumer and the company will be settled by binding arbitration meeting we both

give up the right to go to court. let's work through what it takes to opt out of that provision in the contract. you cannot opt out by email. instead you have 30 days to mail a letter to roku's general counsel. the letter must include the name of each person opting out and their contact information, the specific roku product, software in the product, the services in issue, the email address you used to set up your roku account and if applicable a copy of your purchase receipt. when you hear ms. grace's experience or try to impute or infer that she signed up for arbitration and you see the rigmarole that you have to go through with roku to get out of it, mr. schwartz, is this a contract that should be honored

? >> i'm sorry, sir. could you repeat the question? >> it is a long question. i'm asking about the roku company that has forced arbitration agreement and to opt out of it you need to send an elaborate number of communications specified in a manner that they accept. you heard ms. grace, sitting next to you, talk about what she went through when it was inferred that she signed this agreement. can you count on that with forced arbitration? >> i think some people call it forced, in that situation with age, there should be a opt out. age situations are different than your regular purchase of a product. i think it is an area where carefully drawn rules

should regulate such contracts. in fact, i would say, senator, this is an area where it is hard to find rules in the abstract. having federal regulation of the arbitration agreements i think is a sound step, rather than leave it to the whim of the state courts. some of the agreements may be unfair. it may be unfair with ms. grace and it is very hard to do that in the abstract without specific knowledge of the specific contract i am suggesting consideration of having regulation. at the federal level of these agreements especially in areas of controversy by age, military, children, nursing homes. >> thank you. senator graham. >> the idea of some sort of

regulatory scheme, we will see where that takes us. and suggestion to the committee. >> ms. grace, did you find it more of a common practice that the older you got the more scrutiny you are under in terms of your employer? >> i did, sir. in the prior hospital system i was at. >> what is the difference between your salary and the person that they hired to take your job? >> much less. they hire by experience. my salary was a patient advocate, $38 an hour, which is good money for a nurse. that supervisor who took on my job probably was making 25. >> professor schwartz , in the age discrimination area, is it

a common theme that replacing a older employee with the younger one saves money? >> yes. it has been a longtime -- >> i am talking to professor gilles . i am directing this to the professor. >> i'm sorry. >> i will continue with what joanne told us. younger workers can come in more cheaply. seniority, as many of us know, each promotion gets you more and more money. if you can get rid of those expensive, older experienced workers and call it a worker reshuffle and hire younger workers with less experience, you can do so more cheaply. >> the idea of going to court, the burden is still on the plaintiff, right? >> oh my gosh, yes.

does not pretend that getting rid of forced arbitration means everyone will walk into court and get a check. the federal judicial system has tremendous amounts of tools for federal judges to use to make sure that the cases before them are valid and meritorious. to use them on a daily basis. >> i think rule 11 is one of those tools. >> it is one of those tools when we think something has gone awry. i would say rule eight, it tells is you have to be able to plead your case in a way that shows there is a actual barrier. that is a meaningful rule. rule 12 b6 which gives the client's ability to dismiss claims that they think lacks legal merit. there are a ton of sense stuff that judges and lawyers do to ensure the system operates the way we want it to. forced arbitration basically says to forget all of that and forget all of those cases and

put them in a private system. i think that is the real problem here. >> ms. grace indicated that she could only call one witness in the arbitration setting, is that common? >> are you still asking me? >> yes. >> the arbitrator providers limit discovery. that is one way that they can promise their repeat clients that they will not have to spend much money and not have corporate executives at a sit down for depositions. my understanding is , there are very tight limits on discovery. >> thank you. mr. chairman, i think the protect the older americans act , i hope the committee will take it up and we can pass it. mr. schwartz, your idea about some federal guidelines in this area may make some sense. i would like to continue this discussion.

there is a place for arbitration, i am not against arbitration as a general concept. i think the idea of leveling the playing field and the kind of services you seek matter. the more sophisticated the service, the more level the playing field would be. at the end of the day, basic consumer engagement. we need to make sure people are not left out to dry when it comes to sexual harassment, age discrimination in other areas of our lives that people have a chance to have their day in court. generally speaking, having arbitration is a good thing and i think it is cheaper. it is more efficient. there are circumstances where it does not render justice and that's what i'm looking for, trying to find that balance. >> thank you senator graham. senator whitehouse. >> thank you. thank you all for being here and for supporting this, i think, important cause. the chairman mentioned the important role of the seventh

amendment as part of our constitution. you can go well back before the seventh amendment to blackstone's commentaries speaking about how the jury, the glory of the english system, which we inherited, had the benefit of being a bastion against the influence of the powerful and wealthy citizens. are most powerful and wealthy citizens right now tend to be corporate. you can see the reason why corporate america would like to get out from the jury system. it is the place where you cannot fix things. you can go to congress and shower of money around and have lobbyists follow all over the place and you can help residents get elected and have

special treatment, you try to pull stunts with a jury and you go to jail for jury tampering. we have seen over and over again cases in which a honest courtroom has been the solution to lies and to bullying that were protected in the political space. there is a lot going on when the supreme court tries to disable america's right of trial by jury and have corporations sees it and sent them to binding arbitration. this is had particular impact in the area of the high volume, low dollar fraud that are really only economically answerable by class actions. could you talk a little bit at how the power to take away jury rights and forced citizens into mandatory arbitration has

impacted the ability of corporations to get away with low dollar, high volume fraud. >> sure. this is the very reason we are here. as the cf pd found in a 2015 study of forced arbitration, most arbitration provisions combine a class action ban. the idea is we would prefer these companies to say not be accountable or responsible, as you say small plaintiff injuries , so we can spread the pain to lots and lots of individual americans. most of them are never going to individually arbitrate those claims because it is simply not worth it to do so. >> let's say you had a fake $15 fee on to all of your customers bills, you might get some calls

complaining, in which case you reverse it. the others you can build but nobody will stop you because it is not worth hiring a lawyer to litigate over $15. if you have 2 million customers, that is $30 million that you just robbed from the public. >> exactly. this is why the adopters of rule 23 decided there needed to be a procedural pathway to allow small dollar claims into the court system. otherwise corporations can run roughshod over all of our rights. most of us will never even notice the $15 overcharge. it really is important to see that right now, companies can be doing so many things, so many illegal things along the edges that are simply falling through the legal cracks because class actions are impossible to bring, whereas

there is a forced arbitration clause in effect. >> compared to the elaborate and well developed procedural and substantive provisions that make sure a courtroom is fair, how is it worked out in arbitration chambers? >> that is a complicated question. i will give you a few bullet points. first off, i want to disagree with my esteemed colleague, victor schwartz. arbitration fees are dramatically higher than court fees. they are just higher. arbitrators are paid a daily rate of somewhere between $1000- $2000 in our. individuals do not have to pay judges to hear their cases. the arbitrator provider is picked by the company that the worker or consumer is complaining about. most of you in this room are lawyers, imagine if you could pick your judge.

as you mentioned, senator whitehouse, the arbitration clauses that we see prohibit collective action. that means for most people it is not viable. we talked about this with ms. grace, the rules of the arbitration body limits discovery and evidence, they do not deploy evidentiary rules and they have very limited appellate rights, almost 0 appellate rights. for all of these reasons we are talking about systems that are created by companies and look exactly like what a company would create, it protects them and not the rest of us. >> mr. chairman, back when i was attorney general, one of my attorney general colleagues wrought an action against one of these arbitration offices and cause them to shut down because they had been so crooked in their manipulation of the outcomes against the individuals and in favor of

their corporate clients. there is a long record here and i appreciate your attention to this matter. >> thank you, senator. senator cotton. >> thank you all for appearing today. mr. schwartz i have a series of questions to ask you just to establish baseline fax. since the professor mentioned you by name and disagreeing would you like to respond, i think she said arbitration fees are higher than court fees. >> i submit the rules of the american arbitration system, the payment is not more than $300. there is a one-way fee. if you win the arbitration, all of your fees are reimbursed. i will smith the rules to the committee and be happy to send a copy to the professor so she can look at the rules of the american arbitration system. >> is that $300 a day? >> it is a immediate fee and that is it i will smith the

rules to the committee. the rules don't lie. people can speculate about them and take a look at them. >> thank you. i want to go through these questions that i have to establish some baseline fax. the point of having a court system is so people have a fair and efficient system to hear their claims, correct? >> that is right. >> our state and federal courts backlogged and overburdened right now? >> before covid they were backed up. now it is 18 months until you can have your case heard. meanwhile you have medical expenses, you have other situations where you cannot work where arbitration can be heard much more quickly, sir. >> is it true that arbitration is typically faster at resolving those claims and taking some of those claims to the court system? >> we can submit information to you much, much faster.

courts are delayed with jury picking. >> i want to mention class actions. this committee should look into how class actions are used. in many situations, the lawyers end up with quite a bit of money and the members of the class don't. i see this every year where their willingness, frankly, defense lawyers settle because they want to get rid of the case. the ones who get the benefit are the lawyers and not the victims who are supposed to be helped. this committee looks at different things, class action that are supposed to be help in the class. this committee looks at different things. class actions should have the original purpose of rule 23 and not be used.

>> plaintiffs in arbitration can uncover the same kinds of damages they would get in the court? >> that is true. the stanford study shows the amount of damages don't vary between arbitration and court. >> so studies show the amount of recovery does not very is not material different between the court and arbitration. >> studies show that. >> is it true that arbitration is more flexible? arbitration can occur anytime anywhere on the judges special? >> for people with regular jobs it is much better. people with families, dragged into court is no fun. this can be done at a nearby place where people live, at a time that is convenient for their job. i appreciate the question. >> clients in arbitration can

have a lawyer, get discovery and relevant materials? >> the discovery is lengthy, costly, and disruptive of one's life. that is for sure. i've been doing that for years and i don't want to be in the wrong set of that one. >> there's also talk about nda's, nondisclosure agreements or secrecy agreements. just to be clear that arbitration agreements and nondisclosure agreements are not the same thing. is that correct? >> that is correct. they are separate peace and used in litigation when you settle a case. you sign nda's. you cannot muscle someone from giving the results of arbitration were complaining about it. >> my time is almost up, but it sounds like from your testimony you believe that arbitration is less expensive and faster than

federal courts and claimants tend to do just as well as they do in court. they can make their own decision whether to publicize or talk about the claims and that in general they will do better based on the other testimony from relative to what they would in court versus what the lawyer can take of their cut. is that correct? >> in a practical reason. it's important to remember that with many of these disputes today you cannot get a lawyer. an employee who has a case that is $100,000, that is a lot for them getting a lawyer because the contingency fee system does not provide an adequate reward for the plaintiff lawyer. it's either arbitration or nothing. it's not comparing it to the court. i've made that point in my testimony, but i think it is important that it be in the record. >> this is why the supreme court has acknowledged that federal law policy has

generally been favorable toward arbitration for almost 100 years now. >> it is an area where the court has been an agreement. they fight each other quite a bit but in this area they have respected the federal arbitration act. >> thank you. >> senator klobuchar. >> thank you very much, senator durbin, and thank you to the witnesses. welcome gretchen carlson from the great state of minnesota. i will focus my questions today on antitrust. i wrote a book on this that also can help you step on it to get to the top shelf. i will ask ms. gilles questions on this front because i think it's an important thing that has not been touched on yet. i am chair of that subcommittee. i worked with senator lee on this extensively as well as senator grassley. i'm concerned that some of the

forced arbitrations are frustrating the abyss of our antitrust laws. like i noted during the hearing, one of the hearings on the topic in 2019, i was and still am disappointed to see that the supreme court allowed american express to force arbitration even though doing so would make it difficult to enforce the law. in her dissent in the case, justice kagan wrote that the forced arbitration provision in the employee contract with american express violated the sherman antitrust act by depriving parties have a chance to challenge alleged monopolistic conduct. meanwhile large companies were able to negotiate better fees or arbitration clauses that smaller companies who are still forced into arbitration clauses. you testified, thank you both,

in 2019 and in your testimony today that forced arbitration interferes with antitrust and other laws. could you elaborate? >> thank you, senator. i'm happy to. at that hearing you might remember alan carlson the chef owner of italian colors restaurant the named plaintiff testified. it was a striking piece of testimony. he told us that other companies walgreens, cvs, safeway were able to take american express to trial because they have a tremendous amount of market power. american express could not bind those large companies to forced arbitration clauses whereas it did so for all small businesses including his restaurant which meant that he could not hold american express responsible for the alleged antitrust violations. i think that when we think about small businesses as you all do all the time, small

businesses do a tremendous amount for this country. one of the things they do is enforce laws just like consumers and workers. they are often at the frontlines of enforcing antitrust laws because they are often victims of antitrust violations, anticompetitive behavior which is what the case was all about. >> exactly. as we see more consolidation in such a big way and we are seeing issues as we know with the tech companies, unfortunately we have been stagnant here about changing the antitrust laws. we've gotten a number of bills through the committee and i appreciate leadership on that. they were all bipartisan, every single one of them but they are sitting there. we had one victory at the end of 2022 to get more funding for the agencies giving these huge cases especially involving facebook and apple and amazon and google. we got that done, the senator and i did with

changes in fees which was estimated as about $50 million less merger fees for small mergers and bigger ones for big mergers. then we passed it 88-8 and then the money to some some rock and the federal government. for the first time in 25 years and did not go to the antitrust division of the department of justice. after an attempt was made to delay them. so what is this about? it's a pretty outrageous story which i said. i can't promise this will change in the future but it's also about the importance of private enforcement of antitrust laws. i want to make a case for that but i do want to end with ms. carlson, i have known for quite a while. just asking about what you said in your testimony that the law we passed, and thank you to my colleagues for their leadership about ending forced arbitration of sexual assault and sexual

harassment becoming law in september 2022. you stated that the law is already making a significant impact in the lives of countless survivors. can you describe in more detail the positive effects of this? >> yes. thank you so much, senator. it is great to see you from the great state of minnesota. i mentioned kiersten. she was a bartender at a country club who was harassed by multiple members allegedly as well as by a security guard there. employers are still trying to force victims of sexual misconduct into arbitration because the onus is on the employee to understand that the law has passed and they do not have to go to arbitration. i have not specifically spoken to her but i speak to women every single day that say my company is still trying to force me into arbitration and they can't do that anymore. it's a case that they went to a

judge. her company filed a motion to compel arbitration and the judge denied it specifically because of this groundbreaking law. a judge in texas recently, lays media tried to get a motion to dismiss against one of their employees who alleged harassment by her coanchor over a span of time. that was also denied because of the law. what i have found over the last two years is that the biggest and most important thing after passing this law is to educate people about it. companies probably are not going to willingly tell you that you no longer have to be forced into arbitration for sexual misconduct. this is why it is so important for me to pass the protecting older americans act as well because it is michael to be able to protect all human rights violations that happen at work including senator booker's bill with regard to race arbitration and discrimination.

after my experience at fox news and what i had to go for and respectively mr. schwartz nobody would have known about my story if i was forced into arbitration. we would not be in the movement right now if that had happened to me. if that's not a compelling story enough to understand what happens with the secrecy of forced arbitration i don't know what it is but it is time to do it for other people who are having human rights violated and being shoved into secrecy. >> thank you. >> senator black burn. >> thank you, mr. chairman. thank you to each of you for being here today and for this hearing. mr. chairman, i am so pleased that you mention the ending forced arbitration of sexual assault and sexual harassment act. that is something that we put a good bit of time into. it

was a strong bipartisan effort. it is something that was needed . i fully appreciate what it is like to be a female in a man's world. i had great experiences whether it was the southwestern company or people that i did contract work for. i know not everybody has that. so making certain that women are not going to be isolated and did have the ability to tell their story and to achieve what they feel like his justice is something that is important. of course, ms. carlson we just thank you for the work that you did on the bill and also the speak out act and the fact that those efforts have been invaluable.

as i sit here and look at this issue i agree with senator cotten that there is a place and role for arbitration. as he went through his questioning with you all i know that it has been used as a beneficial tool to be certain that you don't get trapped into lengthy and costly litigation. i'm appreciative of that and i have to say as we look very carefully at this, i am not in favor of expanding this prohibition on arbitration beyond the unique context that we found with sexual assault and harassment. while i am glad we prohibited

forced arbitration, in those limited circumstances, i think we have to be very careful as we look at something that would expand these prohibitions. i am so pleased that we have had the opportunity to hear from you all and to have this discussion today. ms. carlson, i agree with you that education to women when it comes to sexual harassment, education to employees on that prohibition, and the opportunity that they have for the self protection is something that is important. so thank you all for being here. mr. chairman, thank you. >> thank you. senator hirono. >> thank you, senator for having this hearing.

after the supreme court decisions that pretty much said arbitration clauses are okay and the 1925 federal arbitration act would be, would have basically the force of law which it was, but i would like to ask, is it professor gilles? is that how it's pronounced? >> yes it is. >> is in it practically legal malpractice not to cancel your corporate clients to have arbitration losses in their employment contracts to cover just about every dispute that could arise? >> i think so. i tell my students that. i told them if you go out to practice and you are working in big law you should make sure you are putting a forced arbitration clause. obviously it's a statement against interest but it is probably the best way for corporate institutions to immunize themselves from

liability. >> this is why in congress we find ourselves describing certain kinds of complaints and allegations that should be treated differently and not have forced arbitration applicable to them which i think is maybe not quite the way to go because in the case of sexual assault, these are instances where it is very difficult as we've heard from ms. carson. thank you for your advocacy and leadership to bring to light how difficult it is for people that experience sexual harassment and assault in the workplace to come forward. there are many other instances where it's very difficult for people to come forward to launch their complaints. professor, do you or any of the other people on the panel, thank you all for testifying. do you have other instances where you think forced

arbitration clauses make it very difficult for complainants to even come forward? for example, in the instance of hate crimes within the workplace? if there is forced arbitration there could be retaliation. there are various things that could happen. i led our effort to pass the : hate crimes act two years ago realizing that hate incidents are very difficult to be reported so if anybody would like to weigh in on other examples of behaviors where forced arbitration should not be applied? >> i will. thank you so much. i think it boils down to the fact that people do not have the right to decide for themselves what is best for them. when you have forced arbitration, the decision has been made for you. the operative word is forced. if it is so great why is it forced upon you. every study

shows the majority of americans when they understand what arbitration is they disagree with it because they want to be able to make the choice for themselves whether or not they choose to seek accountability or not they at least want to have that choice. >> generally in the arbitration , who selects the arbitrators or the chair of the arbitration panel? who makes those decisions? >> the company does. the company writes the rules. the read the rules in a way that is most beneficial to them which, of course, is what we should expect. >> what if in an arbitration situation that the law requires that the parties involved get to select their own arbitrators and possibly the arbitrators then select a chair. with that make the process more fair?

>> i don't think it would. the truth is that companies like the american association for arbitration, the big platforms that provide arbitration services, they have sort of a stable of ex-judges and defense lawyers and these are people who even if right now you could give me a list of all of them, i would not know who among them to choose. if i have a list and i could strike people off the list. as an individual i don't know who to choose whereas the company as a repeat player knows exactly who the right arbitrators are to choose. the power imbalance continues even if you have a system where there is choice -- and we will call it that -- among a group of basically corporate minded potential arbitrators. i want to give you one example, senator, if you don't mind. brian flores who's an nfl coach

that was fired he tried to bring arbitration along with a number of other nfl coaches that were fired alleging race discrimination. get this, it's not surprising. the nfl arbitration clause says that the soul arbitrator is roger goodell, the commissioner of the nfl. i cannot imagine anyone who would be less likely to find for any of these coaches than roger caddell. not because, i'm say nothing bad about roger goodell, but let's be honest. he basically works for the teams. how could he possibly be unbiased in the case of race discrimination brought by former coaches. i think it is essentially what we are seeing across the board. >> do you think it is time to revisit the 1925 federal arbitration act? >> i think you did revisit it when you amended, with gretchen's help, amended the

statute to add which showed that a 100-year-old statute can withstand some congressional tinkering. i congratulate you for that. i think that the fair act that senator blumenthal has proposed would amend the statute to say that it does not apply to predispute forced arbitration imposed on consumers workers and small businesses. >> we have just been picking different parts of behaviors so it is probably time to look at the whole statute. thank you, mr. chairman. >> senator booker. >> thank you, mr. chairman. i'm grateful for the panel and the conversation that has been had today. i have always had this reverence for the american justice system, its ideals and values. it is unique the principles that we put forward when you travel the world and see how the rights and protections of our founders believed in and

the simple idea that justice should be a place where it is balanced. where justice is lined. what a lot of my career has been about living in a low income community is seeing what brian stevenson once said. unfortunately the reality is you get better justice in america if you are rich and guilty than if you are poor and innocent. then comes the areas of employment law and seeing how the power of corporations has grown so dramatically. i am often stunned at the levels of lobbyist set her down here advocating and fighting for things that will protect corporate power. but yet, many of the people who are workers are losing a lot of their access to a balanced and fair system. the work that has been done in the space has been extraordinary. ms. carlson, you are heroic in my office, but more than that.

you and the work that colleagues of mine have done for what now has been two years sending forced arbitration for sexual assault has transformed the culture of our country. i think that is really important. this idea of what changes cultures and workplaces. cultures that are toxic, cultures that are demeaning, cultures that are breaking laws and violating our values of human decency. that you've opened that up and found ways not just for individual justice to expose these cultures to light. to the disinfectant power of light is extraordinary. what might be justice for one person in a discrimination suit affects millions of people in terms of what is a healthy culture. all of the naysayers and doomsayers who said this was going to result in clogging up courts and exorbitant costs and dragging out disputes,

corporations will find it cheaper to create cultures that are nourishing and nurturing, not just to the bottom linebut to their employees. it is far cheaper to go to that direction correcting the cultures than to allow them to continue. this has been really exciting to see this change. ms. carlson, what has really made people in my office feel such gratitude including myself is the fact that you have said basically that you are not going to stop until we achieve the same rights for workers who have faced discrimination based on race, age, disability, gender, and sexual orientation. in other words forget all of these lines. it is just justice. it's a matter of having justice. ms. gilles was talking about the examples of race discrimination that are so similar to the stories of

discrimination in other areas, they are stunning to me. i could go through them. you brought up the nfl example. the stories i've heard from tesla from black workers have been shocking for everybody that believes in basic virtues and decency. ms. carlson, why is this so passionate for you having achieved such incredible change to still be in the trenches working to make sure it is affecting all workers. >> thank you so much. i believe because i do not believe that forced arbitration was ever supposed to be used to adjudicate human rights violation. it was for small business dispute and it was to unclog the court system for if i knocked over my neighbors fence and we are talking about $300 let's go to arbitration. not when somebody is racially discriminated against. not when somebody is sexually assaulted at work or like i like to i and because she happens to be seasoned. he

brought up an interesting point that i also want to echo which is part of my hope and passing such landmark legislation was that it would actually change the culture as well. you know why that happens? because the power pendulum is like this when you forced arbitration. years the company and here's the employee. if you give this person voice and this person knows and so does this person that you can't be forced into silence with forced arbitration the behavior may also stop. that to me is the most gratifying part of this whole experience is knowing that we might actually start to change culture as well as changing laws. i've said this before and it's a profound statement. changing culture and the most hyper political time in the generation is more difficult than passing bipartisan legislation. >> just to say to you the

stories of humiliation and real financial catastrophe that has happened from people who've been discriminated against is so agonizing to know that there are hundreds of thousands of american still dealing with this. for us as a senate to parse out this time we will deal with age as opposed to everything is astonishing to me. ms. grace, i was hoping that you could end for a second and say what would it have meant to you to have the choice to decide whether to go into arbitration or have your day in court. when she finishes i will yield. >> first of all i think that having worked as long as i did in a particular field -- >> could you make sure your microphone is turned on in front of you. thank you.

>> i'm sorry. i think if you work in a field as long as i have been one field you develop a trust in your corporation and organization that they will do right by you because you have given your whole life to them. when you find out that that is not the case, i think i want to have a right to say to other older americans you have to watch your own back. you have to make sure that they are not going to do the same thing to you that they have done to me. of just blinding me and not allowing me to speak. i think that employees everywhere, older americans that deserve the right to vote, -- i'm sorry. they deserve the right to have their own representative or to give their voice, i can't do it because we are old, older. we

can't honestly we just can't do it ourselves. we need to have the help. that is when they offer arbitration. arbitration is just a means not to change anything but to hide everything. it is a form of secrecy that should not have to exist in our country because if there is fairness on behalf of the corporation to the employer and to the employee as i have been faithful to them, why would they do that to me? they wouldn't. it would just be more even as gretchen said. it would be an even play but if we are down here and they just decided there when we will get rid of her for somebody younger, i can understand they might think it is more efficient to have somebody they can pay $25 to instead of $38 an hour. particularly in fields

like nursing you get what you pay for. the older person often has the wisdom, the knowledge, that a younger person cannot possibly have. it takes years of experience to develop that. what we know directly reflects to our patients and their safety and their health. so we affect a lot of things just as a nurse. you are telling me i'm just going to get rid of you because we have somebody on your is the younger that we know we want to slide in here and i don't have a voice to say, wait a minute. this is not fair. other people seem to know it is not fair. this is america. my parents were both world war ii veterans. they taught me to work hard. they taught me everything about america was wonderful. my mother was an immigrant from russia poland.

to say now that the justice system can just tie our hands behind our back and we are not allowed to speak and they take our boys away, to me that is not america anymore. i just want to see that come back. if we could start as we started with sexual harassment, i think older americans have given their lives for this country, for their community, for their corporations. they deserve just to have an even playing field back. >> thank you, ms. grace. senator tillis. >> thank you, mr. chairman. ms. carlson, good to see you. when did you first come before this committee? >> i don't know if i have testified before this committee. i have talked to you about supporting my legislation. i have testified before house judiciary before. >> how long ago was that?

>> i believe i did it twice. in person before covid and virtually during covid. i have been here waiting and watching. >> i have seen you here. i appreciate your tenacity. it makes a point. you are still trying to accomplish what you set out to accomplish years ago and there has not been any progress. i'm wondering, mr. schwartz, i was here for the video. i have to say that for people making employment decisions you need to know whether or not a firm requires binding arbitration or not and let that be. you may have a right to due process. you don't have a right to a certain employment contract because the employer get to set the terms. i hate to put it in coldhearted terms but that's the reality of it. there have been abuses, particularly with age and sexual misconduct are two good examples. mr. schwartz, how do we not

just have this hearing six years from now but fall short of getting rid of binding arbitration which i believe is a useful tool and should be still allowed. how do we bridge the gap versus having this discussion and never quite have, so one side wins and the other side loses. what are the experts thinking as a happy medium? and is there one? or is there just the nose under the tent you can't go that far. how do we relieve some of the pressure to write some of the obvious wrongs that have occurred but fall far short of what many colleagues on the other side of the aisle want to achieve? >> fortunately with regard to gag orders, state courts i think led by the chairman of the committee have rolled gag orders unconscionable and not enforceable in the record to show that. i think that is important.

people should be able to discuss the results of their arbitration if they disagree with them as a matter of basic free speech in our country. there are certain isolated areas and i suggest to the chair and ranking member that this committee can consider regulatory matters to address the specific areas where there is a problem which has been so carefully advocated by ms. carlson, so that you don't, i hate to use the throw the baby out with the bathwater, but you don't get rid of. i think it is important in this committee to try to contradict yourself at least once. that is what i have always tried to do. the hearings are the hearings.

we don't just have the same hearing over and over again. consider regulation of these agreements because for the most part, they are helpful. they are cheaper, faster, i know the litigation system and believe me you don't want to get involved with it. it is delayed, costly, so in many cases it is the only alternative for somebody is arbitration and it is not cool. the committee looking carefully at the possibility of regulation can avoid having the same hearing every three years and address these issues work >> that is my point. unless there is some sort of a seachange you will always have to have bipartisan agreement on this and that's why things are falling short which is why ms. carlson is having to spend more time in dc. count me in as one of the people who actually want to get to what i think is a fair

treatment. i believe that there are a lot of merits to arbitration and to throw them out would be throwing the baby out with the bathwater. but there are also very clearly. the one thing i can say about committee leadership, they bring forth very sympathetic cases. i get that. how anyone can say that is an acceptable outcome, i guess somebody could. i couldn't. that i do not like -- i have a few skills. one of them is a good memory. all we are doing is covering ground we have covered before. thank you for your preparation. i would like to find some way to make progress so ms. carlson can do other things rather than have to spend time appear. so mr. schwartz, we will reach out to you but i really do want to be part of a group that actually makes progress that provides some answer for the egregious examples that have been exhibited in the committee

print materials but not just a seachange in the way businesses use arbitration appropriately far more often than situations that are being discussed today. >> i would be pleased to to help . i said earlier lots of times i'm here as a client but i'm not justifying by any client not being paid. i am at a stage in life where i would like to be a little bit more helpful. >> we would like to tap on your expertise as long as you are not going to me -- billed me for it. >> thank you. senator butler. >> thank you, esther chair. thank you to all of the witnesses here. there has been so much here that has really grabbed my imagination, source of incredible frustration, but also tapped into a number of experiences that i've had across

my career. professor gillis, it is such a pleasure to hear you use the phrase collective action. as someone who has spent 20 years in the labor movement, another tool that we have to give voice to workers is that of unionization. in the space of unionization, there also is arbitration. there is an arbitration process that gives voice. ms. carlson to the point you made, that equalizes. the voices and power of employers and employees through their chosen organization and representative or union. every experience of union arbitration that i have had, there was a jointly chosen panel. not an association that gave you some names to consider.

instead of a workers grievance in case that went to arbitration the union and the employer had to agree on who was going to be the arbitrator or panel of arbitrators. everybody had ability to eliminate a name from that neutrally chosen list. i believe there is a framework in terms of how we can utilize and get the best benefits from arbitration. we just have to look to some of the models that we have created. i'm not here to say unionization but we do have models of fairness we can call upon. ms. carlson, it struck me in your written testimony or reference to tesla workers who have been, and a number of my

colleagues have been working to support their unionization. the choice that they are making to choose to form a union there at tesla. we all know that there are certain categories of workers that today labor laws do not allow to unionize. as i was listening and reading the testimony, one of the things i was curious about has been referenced here. you have been relentless. there's the category of workers that have available the tool of unionization. there's the category of workers that only by antiquated laws are traditionally excluded. what are some of the recommended evolved tools, new tools,

contemporary tools that you would suggest that this committee really take up to advance the protection of human rights you are so dedicated to. >> this strategy is for the protected class. it has to be bipartisan. it should be bipartisan because we are talking about human rights violations. that has been the strategy. it's why i'm moving forward with the americans act and i support senator booker's bill about race discrimination and forced arbitration. for me giving trust me. a lot of them will not choose to speak it. i can tell you from personal experience it's not fun to come forward. as the professor has also spoken about this morning, it is

very hard to prove your case. it is relevant and sound as we get to court. that disproves the notion that we will have a flurry of cases for the acts. i need to get the monogram or acronym from you. >> what do you call that. that is even harder. it is a mouthful. that is why i keep coming back. if you give workers choice and liberty to make their own decisions, that to me is the fairest way to do this. if you want to make arbitration an option which it still is some of the law, then they can choose it but i would not recommend it. >> one last question, esther chair, if i could. professor gilles you talked a

lot in your testimony about how forced arbitration exacerbates economic inequality in the country. another gift of the labor movement and unionization is greater pay equity. it seems that in the space of forced arbitration, we continue to see at least according to the data that you made reference to, greater economic inequality in the space. so i am curious. i just wanted to ask this question out of curiosity. i am curious. is there any further information or greater detail that you can reveal about what the data shows relative to forced arbitration, particularly on women workers and workers of color just to try to pair the response that

ms. carlson just gave. >> of course. i appreciate the question. obviously more data is always better so we should do our studies, the studies show us that women and minorities tend to work in fields where forced arbitration is employed far more often than other fields. that is one good bit of evidence. we also take a historical view. there have been studies that take a historical view. the truth is that women and minorities are the least like to bring claims in court even before forced arbitration. the fear of retaliation. the intimidation that comes with being the person that is bringing the claim, have often silenced women and minorities. you just have to be aware that poor people in the country, they bump into the corners of the law and all sorts of ways. those are sharp corners and they do not necessarily know who to go to, how to get representation, how to get

advice. many times they just end up lumping it. they cannot afford to quit the job and find something else. even if they did quit the job and find something else everybody is doing it. everybody is forcing you to arbitration. for those of us that are concerned about the rising levels of inequality forced arbitration is just one additional tool that enables the chacin to continue to grow. >> thank you, senator. i listened to the defense of forced arbitration. what i heard was -- i wrote down the words. it is easier, cheaper, faster, just as fair as the court if that is all true, why is it forced. if the employee or the person that is aggrieved thinks it is such a good idea why not just

make it an option. basically we will not take away your constitutional right under the amendment. it is your right as a citizen of the united states. the argument about arbitration being a much better outcome, maybe in some cases. by and large that should be made by the aggrieved party. the worker or the citizen. that is so fundamental and basic. gretchen carlson, thank you for coming back. especially ms. grace. thank you for telling me your story. maybe you will join ms. carlson and be able to point to something that changed america because you took the time to speak up and stand up. you might get some written questions from members of the committee. if you do please return them as quickly as you can. this meeting stands adjourned.

>> thursday fdic chair of the federal reserve the vice chair and acting comptroller of the currency testify about financial oversight, a recent independent investigation found continued sexual harassment, discrimination at the fdic. watch before the senate banking committee at 10:00 a.m. eastern or the free mobile video app or online at c- span.org. >> get information from members of government right in the palm of your hand when you order the

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