SC law keeps sexual harassment claims behind closed doors. A bill could change that

In South Carolina, employers can force workers who say they have been sexually harassed into private, legal negotiations, effectively avoiding lawsuits and keeping the details of the accusations from going public.

A bipartisan S.C. House proposal would change that, giving alleged victims of sexual harassment the option of making their claims public in a court of law by preventing employers from enforcing arbitration when it concerns claims of sexual harassment.

“We’re not forcing these women to go to court,” said state Rep. Beth Bernstein, D-Richland, and a primary sponsor of the bill, introduced this month. “It’s a better avenue, obviously. But, it’s not mandated. (Forced arbitration) silences the victim.”

The House proposal – backed so far by three Democrats and three Republicans – shows a growing public effort to quash sexual harassment in the workplace in light of numerous sexual harassment and assault allegations being made public against Hollywood, media and political elite.

Sexual harassment allegations also have hit the state House, resulting in two state representatives resigning since 2015. House leadership says it has received sexual harassment complaints against three House members since 2000. The Senate has received no sexual harassment complaints against lawmakers, officials say.

The Senate is in the process of drafting an anti-harassment policy. The House has one in effect already.

“The stories across the nation have certainly mandated that we focus intently on battling harassment,” said Senate President Pro Tempore Hugh Leatherman, R-Florence. “Even though we have yet to have complaints filed against our members or employees, the Senate will have a clear and robust no harassment policy. I directed that a policy be drafted and it will be in effect before next session.”

Leatherman added, “The people of South Carolina need to know that you can send your husbands or wives, sons or daughters to Columbia to work or serve and that they will be treated professionally and with respect. If they are not, those responsible will be dealt with swiftly.”

Meanwhile, the state’s more than 100 agencies are responsible for their own anti-harassment policies but do receive guidelines from the S.C. Department of Administration’s human resources division, said department spokesperson Kelly Coakley.

The Department of Administration has had its own policy since 2015. The policy covers the executive director down to the employees, including some of the state’s smaller agencies such as the governor’s office.

Coakley noted the state’s Human Affairs Law establishes state policy dealing with harassment in the workplace. The policy applies to all employers and state agencies.

Bernstein, whose bill would end forced arbitration of sexual harassment claims against employers, said she recently discovered how common it is for companies to use forced arbitration in contracts.

Five other state representatives are co-sponsors on the bill: Republicans Gary Clary of Pickens; Raye Felder of York and Anne Thayer of Anderson; and Democrats Mandy Powers Norrell of Lancaster and James Smith of Richland, who is running for governor.

“We need to start addressing sexual harassment in any area and in the workplace,” said Clary, a retired circuit court judge and a certified mediator and arbitrator. “This is a good bill. I hope that we can get some traction on it when we go back” to Columbia on Jan. 9 for the start of the legislative session.

‘The problem is huge’

Laws forcing arbitration in sexual harassment cases are facing national scrutiny.

The S.C. House proposal is similar to a bill filed in U.S. Congress and sponsored by U.S. Sen. Lindsey Graham, R-Seneca. Graham joined a bipartisan group of lawmakers and former Fox News anchor Gretchen Carlson to announce the federal bill earlier this month.

Carlson and Fox News reached a $20 million settlement this fall after she sued then Fox News-chairman Roger Ailes, who died in May, for harassment and retaliation.

“This is an open invitation to the business community to get behind this bill,” Graham said earlier this month. “If nothing else, a lot of women will want to do business with a company.”

Christine Hines, legislative director for the nonprofit National Association of Consumer Advocates, said forced arbitration became popular in the 1990s and 2000s. The trend kept growing as the U.S. Supreme Court loosened oversight and ruled in favor of companies, even going as far as letting companies bar people who bring disputes from ever joining a class action lawsuit, she said.

Hines, who supports ending forced arbitration, objected to the notion that the cost of forced arbitration is far less than litigating the case in court, pointing out that arbitrators charge by the hour.

“The problem is huge,” Hines said, adding that “the #MeToo (social media campaign) and the efforts of Gretchen Carlson, a victim, has really brought attention to forced arbitration and how it has really forced all these complaints to be in secret for far too long.

“The fact that people are speaking out is a perfect time to eliminate this forced arbitration for (sexual harassment).”

This story was originally published December 19, 2017 at 7:00 PM with the headline "SC law keeps sexual harassment claims behind closed doors. A bill could change that."