Congress passes law to end forced arbitration of sexual assault, harassment claims

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which Congress passed on February 10, 2022, lets individuals choose whether to arbitrate or take their sexual assault or sexual harassment claims to court.

How new law works

The bipartisan legislation, which President Joe Biden was expected to sign, takes aim at predispute arbitration agreements (i.e., those entered into before any conflict has actually arisen) and predispute joint-action waivers (i.e., those made before any dispute has arisen and that waive the individual’s ability to file the case as a joint, class, or collective action).

The Act defines “sexual assault dispute” as a conflict involving a nonconsensual sexual act or sexual contact, including when the victim lacks the capacity to consent. A “sexual harassment dispute” is defined as a conflict relating to:

• Unwelcome sexual advances;
• Unwanted physical contact that is sexual in nature, including assault;
• Unwanted sexual attention, including unwanted sexual comments and propositions for sexual activity;
• Conditioning professional, educational, consumer, health care, or long-term care benefits on sexual activity; or
• Retaliation for rejecting unwanted sexual attention.

If President Biden indeed signs the Act as expected, it will apply to any sexual assault or harassment dispute or claim that arises or accrues on or after the measure is enacted.