On March 3, 2022, President Biden signed into law H.R.4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“Act”). The Act provides, in relevant part, that:
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 predispute arbitration agreement or predispute 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.
What this means is that employers can no longer force employees who have been subjected to sexual harassment or sexual assault to submit their legal claims to arbitration. Employees can now choose to file their cases in court, regardless of the prior existence of an arbitration agreement. Nor can employers force employees to give up the right to file a class or collective action related to sexual harassment or sexual assault.
The Act explicitly provides that it applies to any dispute or claim that arises or accrues on or after the date of enactment, meaning any harassment or sexual assault occurring on or after March 3, 2022. It does not apply to existing cases already in arbitration or ones where the sexual harassment or assault only occurred before March 3, 2022.
The Act provides that any dispute regarding the applicability of the Act to an arbitration agreement must be decided by a court, not an arbitrator.
We anticipate that more employment lawsuits will include claims for sexual harassment, and that courts will invalidate arbitration agreements in those cases.
This law levels the playing field by giving people subjected to sexual harassment and sexual assault a fair shot at justice. Research has shown that consumers are more likely to be struck by lightning than to win a monetary award in arbitration. We hope it opens the door to further legislation prohibiting arbitration in all employment and consumer cases.
