The End of Forced Arbitration for Survivors of Sexual Assault and Sexual Harassment

On March 3, 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act. This law is one significant step forward in the fight to end arbitration contracts that deny access to the Courts for violations of fundamental workplace rights.

For far too long, countless survivors, workers, and consumers have been silenced by forced arbitration.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act nullifies “agreements between employees and their employers in which the employees waive their rights to sue in the case of sexual assault or harassment,” as reported by The Washington Post. More than 60 million Americans are subject to such clauses, often buried in the fine print of their employment contracts.

The Legal Details

The short and to the point language of the Act prohibits enforcement of any arbitration agreement for a claim that “relates to sexual assault or sexual harassment”:

a) In General.—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.

The law impacts any claim that arises after enactment of the act. Full text available here.

 

Are You Subject to Arbitration Contracts in Your Workplace?

One online resource has a helpful tool to see if you may be subject to arbitration contracts in your workplace. Find it here.

Sen. Kirsten Gillibrand (NY), a co-sponsor of the bill, said it “will give survivors their day in court, allow them to discuss their cases publicly and end the days of institutional protection for harassers.” She added that it would help to “fix a broken system that protects perpetrators and corporations” at the expense of survivors.

Fellow co-sponsor Sen. Lindsey Graham (SC) addressed accusations that the bill is “bad for businesses,” saying “it does not hurt business to make sure that people who are harassed in the workplace get treated fairly.”

Our Take

Although mandatory arbitration clauses can no longer be used in this context, we anticipate employers will continue to use them to prevent employees from accessing the courts for other types of claims. This will likely continue to be in flux for some time. Employees should seek out experienced counsel who can help them navigate the legal system.