Congress invalidates forced arbitration of sexual assault/harassment claims

Who said bipartisanship was dead? In a rare display of cooperation, the U.S. House and Senate recently passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445). President Joe Biden, who expressed his support for the bill, signed it into law in early March. 

How new law works

H.R. 4445 amends the Federal Arbitration Act (FAA) to invalidate predispute arbitration agreements and predispute joint-action waivers involving sexual harassment and sexual assault claims. Specifically, Section 402(a) of the law provides:

Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no pre-dispute arbitration agreement or pre-dispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

Decisions about the law’s applicability to arbitration agreements will be decided by the courts, not an arbitrator. As written, the law will apply to “any dispute or claim that arises or accrues on or after the date of enactment of this Act.”

Impact on employers