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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning, everyone. Senator Kirsten Gillibrand joins us now for her monthly visit. She's a member of the Armed Services Committee, so we will definitely talk about the delicate line that the US is seeking to walk right now on how far to go to support Ukraine without becoming a military party to the war ourselves. This is becoming a bigger thing and more complicated. For example, Poland, did you hear this yet, is apparently trying to escalate the war in our name by sending MiG fighter jets to a US-NATO airbase in Germany to fly from there into the contested airspace over Ukraine.

So far the US is calling that plan untenable. Ukraine's President Zelenskyy wants us to enforce a no-fly zone over Ukraine, but that too could mean direct combat between the US and Russia and launch a wider war. President Biden had also been resisting the boycott of Russian oil because of the price increases it would impose on Americans, but bipartisan pressure, including from Senator Gillibrand got him to do it. Yes, the price of a gallon of gas has been going up in the US daily now as you know.

New York State Attorney General Letitia James is looking into possible price gouging, that is using the embargo as an excuse by unscrupulous sellers in the gasoline industry. We'll talk about all that. There is also some bipartisan good news no less. Senator Gillibrand and Senator Lindsey Graham were together representing their parties at a White House signing ceremony for the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. Explain how that protects workers and shines a light on the process that tens of millions of American workers don't even know are subjected to until they have a problem.

So-called forced arbitration that their employers impose. Senator Gillibrand, always good to have you. Welcome back to WNYC.

Senator Kirsten Gillibrand: Thanks so much, Brian. How are you?

Brian Lehrer: I'm okay. Thank you. Let's talk first about the war in Ukraine. As a member of the Armed Services Committee, what's your reaction to the move by Poland to try to have planes fly from a US airbase in Germany into the war?

Senator Kirsten Gillibrand: I think it's not helpful. We are trying to give as much support to the Ukrainian people as we possibly can without engaging on a military level that would perhaps be seen by Russia as American aggression and could escalate into a world war. We are using our judgment and best discretion about how best to help the Ukrainian people. Congress is putting together a $14 billion assistance package right now and that money is going to help defend against cyber attacks. It will provide food to deal with the extreme hunger and food insecurity in the region.

It'll shore up NATO allies in case Russia intends to be more aggressive in those directions. We're going to do everything we can without escalating this war and really try to meet the needs of the Ukrainian people as best we can.

Brian Lehrer: The Pentagon says it was blindsided by Poland's announcement, but we also know President Biden has been talking to Poland about something like this. Here's Secretary of State Blinken on CNN on Sunday.

Secretary of State Blinken: We are working with Poland as we speak to see if we can backfill anything that they provide to the Ukrainians.

Brian Lehrer: In your opinion, Senator, what should we be willing to do and what should we not militarily in Ukraine? What was Secretary of State Blinken referring to there that sounds like what Poland is doing?

Senator Kirsten Gillibrand: I think the Biden White House is doing what they can to strengthen our allies in the region. We also put thousands of troops in Poland. We've also placed troops across other NATO allies as a way to show Russia that we stand united with NATO and we stand united with the Ukrainian people. There's a very delicate balance that the White House has to determine will certain types of military assistance elevate or escalate. Based on the current statement by the White House, us delivering planes, in their view, could be perceived as an escalation.

That's the tension here. We want to help Poland in the way that Poland needs support to feel secure and we want to help the Ukrainian people in every way we can to alleviate the suffering that's going on. We are resisting mobilizing the military support that will be seen as escalatory by Russia.

Brian Lehrer: One other thing on potential military involvement, President Zelenskyy wants a US-enforced no-fly zone. That would put us at war with Russia. That's what Putin says, but I think that's an objective military observation as well. I heard a former Obama defense official on Morning Edition today advocate a so-called limited no-fly zone, just over the humanitarian corridors where Putin claims to be allowing people to leave through, but then he doesn't really. Do you think a limited no-fly zone like that is any less escalatory than a full one over all of Ukraine?

Senator Kirsten Gillibrand: The problem is, is if you are forcing a no-fly zone over Ukraine, the likelihood or possibility of an incursion with a Russian military jet is high. You're taking a great risk of escalation. The difference between a world war and what's happening right now in Ukraine just means the pain and suffering will escalate many, many times more. You're talking about an exponential increase in death and destruction. Russia has already been provocative by saying their nuclear weapons are on the ready.

We don't want to see a day when Russia uses its nuclear weapons against anyone, certainly not against our allies and the United States directly. We are trying very hard to de-escalate what's happening in the Ukraine and to give the humanitarian support that we can so that people are suffering less than they are. This is entirely caused by Putin's unprovoked aggression and we have to continue to use as much leverage as we can to push them back.

Brian Lehrer: On the oil embargo, President Biden had been reported as hesitant, but acquiesced under bipartisan pressure from Congress. As I understand it, you were part of that pressure, yes.

Senator Kirsten Gillibrand: Yes. The one thing we do not want to do is subsidize Russian oligarchs and the Russian regime by buying their oil. This will create pain and suffering in America because oil prices and gas prices at the pump will continue to rise. I think as we watch the bravery of President Zelenskyy and the Ukrainian people, their determination to fight everywhere for as long as it takes, is something that we should support. If we can do it by some belt-tightening, it's worth it because we can hopefully deny Russia with any resources that would allow them to continue to wage this war.

Brian Lehrer: Maybe you just did it, but the Washington Post has an article this morning about the challenge for the President of telling the American people they're sacrificing for a country that most Americans barely knew existed. I think you just started to give a rationale there but take us a little deeper. How would you explain, okay, you're paying 10, 20 cents more per day for a gallon of gasoline right now and we're imposing an oil embargo on top of that. Explain to Americans why it's worth it?

Senator Kirsten Gillibrand: Well, we don't support criminal networks and we don't support resources coming into our country and our community if they're ill-gotten or they are blood money. Russian oil is the same as blood money today. They are using the profits from their oil to shell innocent people and innocent communities and destroy apartment buildings. Children are dying. We now have two million refugees flowing out of Ukraine. The least we can do is suffer through financial pain to help to stop the flow of resources to Russia because it's blood money.

Brian Lehrer: On the two million refugees, I've read that the US is not admitting any of them or any meaningful number to this country. Do you know or do you advocate a certain number being allowed to come here?

Senator Kirsten Gillibrand: I don't know what the White House has said with regard to Ukrainian refugees. I know Governor Hochul has said we are happy to take Ukrainian refugees. That our doors are open, which I fully support. Two million refugees I think is the greatest migration and refugee crisis since the last world war in Europe. We have to understand that this is going to be grave, grave suffering. We should do our part, whether it's through humanitarian aid or welcoming the refugees into our communities.

Brian Lehrer: Senator Kirsten Gillibrand with us. Let's talk about a bipartisan legislative success that you get a lot of credit for, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. That's a lot of words to people who never heard of this before. Explain to folks what it is and how it might help workers.

Senator Kirsten Gillibrand: Today or before this law was passed when people signed an employment agreement to join a new company or a new employer, little did they know that they were signing away their constitutional rights to a jury trial if they wanted to come forward with claims of sexual assault or sexual harassment. What this legislation so elegantly does, is it restores that constitutional right. Any contract provision for a service contract, for an employment contract that has forced arbitration provisions are nullified if you want to bring a claim for sexual assault or sexual harassment.

It restored 40 million people's constitutional rights to a jury trial overnight by signing this legislation and it's the most significant employment law reform and certainly in the last couple of decades.

Brian Lehrer: Why are lawsuits better than arbitration? Arbitration sounds like let's all get around a table and try to work this out like mediation.

Senator Kirsten Gillibrand: The statistics about arbitration show that it disproportionately helps the employer who not only pays for the arbitrator but chooses the arbitrator. Arbitration was initially designed for two corporate entities to be able to resolve conflicts quickly with less money, with less constitutional protections, because it was meant to be a peer-to-peer process. Unfortunately, in these type of cases of sexual assault and sexual harassment, the employer has far more control and far more leverage.

Second, the rewards the money that comes out of an arbitration award versus a jury trial award are vastly different. For arbitration, something like the average or the median award is as low as $30,000 where in a jury trial the awards are in excess of $200,000. You're just talking about a very significant degree of difference between what justice is possible. The other problem with forced arbitration is that people are forced to be silent. Most forced arbitration clauses include nondisclosure agreements.

If you are being harassed by a serial harasser or a serial sexual assailant you can't even tell your peers and your colleagues what's happening to you at work. You don't get to hold the company accountable and change the climate because a lot of times they will continue to employ the harasser or protect the harasser. The obvious example is what happened to Gretchen Carlson at Fox News to the extent any of your listeners ever saw the film Bombshell, it was shocking.

There was a culture of harassment throughout Fox News and it was severe and prevalent. Despite women coming forward and complaining about Roger Ailes, they weren't able to get justice and they weren't able to warn any other women that worked there. Getting rid of the required secrecy is also very important.

Brian Lehrer: I saw the stat that 60 million American workers have these forced arbitration clauses and most don't even know it. How does that happen?

Senator Kirsten Gillibrand: Overtime employers began-- and this has really happened over the last 20 or 30 years. Employers have gained power in our economy where they get to set the terms of employment. Without union contracts and union advocacy, employers have the vast majority of the power. They were able to put these in employment contracts. Employees could do nothing about it because all of these arbitration proceedings were confidential, a lot of people didn't know how bad the workplace climate was is in so many places.

They weren't able to call out harassers publicly or assailants publicly. They had to just deal with these behind-the-scenes processes. Then if they did get a positive resolution, almost always it was accompanied by a non-disclosure agreement, so they couldn't do it publicly.

Brian Lehrer: Last thing, Senator Gillibrand the Supreme Court nomination of Ketanji Brown Jackson. If no Republicans vote to confirm her, do you have Manchin and Sinema on board for this which would presumably give you the 50 votes you need?

Senator Kirsten Gillibrand: I believe we do. I wouldn't be surprised if we had a few Republican votes. She was voted in favor during her Circuit Court nomination process by three Republicans at the time, Lisa Murkowski, Susan Collins, and Lindsey Graham. There's a possibility that she receives those votes again or maybe one or two of them. There's others senators that weren't around for that vote who may decide to vote for her as well. You never know if that Romney might support her candidacy and Rob Portman and other moderate Republicans might ultimately vote yes.

I'm optimistic that this will be a thorough process and one that ultimately is bipartisan.

Brian Lehrer: Did you get to ask Senator Graham if he would vote for Ketanji Brown Jackson? Again, I know you and he were involved in working together on the No Forced Arbitration Act. Then he had put out a statement that even though he voted for her for the lower court, that her nomination for the Supreme Court is a win for the radical left?

Senator Kirsten Gillibrand: I think because Senator Graham is on the judiciary committee, he may be reserving his judgment to the hearings. Most senators who are on that committee will participate in those hearings in a diligent way and then make a decision. However, that statement by Lindsey Graham sounded very political. I'm not sure where he ends up, but I do believe there are Republicans who will give it a fair review and give that nomination a fair review. I think they will support her ultimately.

Brian Lehrer: Senator Gillibrand, we always appreciate it. Thanks so much.

Senator Kirsten Gillibrand: Thanks, Brian.

Brian Lehrer: Brian Lehrer on WNYC, much more to come.

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