Congress Passes Bill to Nullify Forced Arbitration of Workplace Sexual Harassment and Assault Claims

By: Corey Bartkus

Both chambers of Congress recently passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”), a bill aimed at preventing employers from requiring workers to arbitrate sexual harassment and assault claims.[1] The bill is now headed to the desk of President Biden for his expected signature.

The bipartisan bill will amend the Federal Arbitration Act to make pre-dispute arbitration agreements covering sexual assault and sexual harassment claims unenforceable and will apply to any claim arising or accruing on or after the date of enactment.[2] The bill comes in the wake of the #MeToo movement, which brought widespread claims of sexual harassment and assault in the workplace to light.[3]

According to a summary of the bill, the Act would allow sexual harassment and sexual assault survivors to elect to file a case in a court of law rather than be subject to mandatory, forced arbitration provisions in cases involving sexual harassment or sexual assault disputes.[4] The bill summary goes on to explain that by voiding forced arbitration clauses in the case of sexual assault and harassment, survivors are provided the freedom to decide what legal path works best for them – that can include bringing a claim in court, discussing their case publicly, or seeking another kind of legal remedy. It will eliminate institutional protection for harassers and abusers and give survivors the chance to pursue justice.[5]

Employees who have signed pre-dispute arbitration or joint-action waiver agreements may still opt to arbitrate such claims if they would prefer, but the decision will rest solely with them.[6] The legislation would also explicitly require courts, rather than arbitrators, to determine whether the Act applies to a given claim, regardless of whether the agreement at issue delegates such authority to an arbitrator.[7]

Notably, the Act would only apply to sex-based harassment and assault—other civil rights claims, including gender or race discrimination, are not covered, and can still be included in mandatory arbitration provisions.[8] The Act would also not alter existing requirements that claims under Title VII be exhausted through initial filing with the EEOC or the applicable state or local agency handling discrimination matters.[9]

The Takeaway:

Once the Act takes effect, employers should revise any arbitration provisions in their employment agreements, arbitration agreements, and other contracts to ensure that claims of workplace harassment and assault are carved out of any mandatory arbitration provisions. Give the attorneys at Campbell Litigation, P.C. a call to discuss how to best implement this strategy.

[1] https://www.congress.gov/bill/117th-congress/house-bill/4445.

[2] Id.

[3] https://www.jdsupra.com/legalnews/senate-passes-bill-curbing-arbitration-4864846/.

[4] https://demings.house.gov/media/press-releases/rep-demings-votes-end-forced-arbitration-sexual-assault-and-sexual-harassment.

[5] https://scottpeters.house.gov/media-center/press-releases/rep-peters-helps-pass-groundbreaking-bill-to-end-forced-arbitration-for#:~:text=By%20voiding%20forced%20arbitration%20clauses,another%20kind%20of%20legal%20remedy.

[6] https://www.congress.gov/bill/117th-congress/house-bill/4445.

[7] Id.

[8] Id.

[9] https://www.jdsupra.com/legalnews/senate-passes-bill-curbing-arbitration-4864846/.