Congress Bans Arbitration Provisions Covering Sexual Harassment and Sexual Assault Claims

by | Feb 15, 2022 | Employment Law, Sexual Harassment |

Litigants alleging sexual harassment and/or sexual assault in the workplace want to have their day in court and have their cases decided by jury trials. However, in an attempt to keep such disputes out of the public eye, employers frequently require their employees to sign arbitration agreements, so the claims at issue are decided by a private arbitrator (rather than decided in court). That appears to be changing in matters involving claims alleging sexual harassment or assault. Indeed, on February 7, 2022, and February 10, 2022, respectively, both the Senate and House of Representatives passed H.R. 4445, which is known as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.” President Biden is expected to sign the bill into law.

The proposed legislation provides, in relevant part, that: “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.” (Emphasis added). In addition, the proposed legislation provides that, if there is a dispute regarding whether the legislation applies to an arbitration agreement, such dispute will be determined by a court, rather than an arbitrator. Notably, the “Act and the amendments made by this Act, shall apply with respect to any dispute or claim that arises or accrues on or after the enactment of this act.” Therefore, it appears as though the Act applies prospectively but can apply retroactively to signed agreements prior to the enactment of the Act.

Without question, this bill is an important victory for employees who are subject to sexual harassment or sexual assault in the workplace. First and foremost, it provides express statutory authority to keep their claims in court. In addition, it puts more pressure and scrutiny on employers since these claims will be litigated in a public forum.

If you have any questions about this Act and/or believe you have been subject to workplace harassment, please contact Curcio Mirzaian Sirot LLC.

*Frank A. Custode, Esq., is a Partner of Curcio Mirzaian Sirot LLC and the Chair of the firm’s Employment Practice.