Congress Passes and President Signs the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

On February 10th, 2022, the Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. The bill had passed in the House 335-97 just three days prior on February 7th, 2022.  The President signed the bill on March 3rd, 2022, which prohibits forced arbitration for cases of sexual harassment and sexual assault.

Forced Arbitration for Sexual Assault and Harassment

Sexual harassment may include an unwanted sexual advance, dirty jokes, offensive images or sexually explicit text messages and emails. This offensive conduct does not have to be directed toward the person, but may create a hostile work environment. In the workplace, harassment becomes illegal when it is severe or frequent, creates an offensive work environment, or causes adverse employment changes such as an employee quitting to escape the harassment. Sexual harassment is a form of employment discrimination.

Currently in many states, contracts signed by employees can require binding arbitration for all wage and labor disputes.  These disputes can include sexual assault and sexual harassment. Forced arbitration through employee contract can be used by the employer to prevent a lawsuit, or prevent a class action lawsuit for behavior affecting many employees.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act prohibits the enforcement of such clauses for cases alleging sexual assault or alleging sexual harassment:

402. No validity or enforceability

(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 amends Title IX, the federal law passed in the 1972 Education Amendments Act by President Nixon, to include the provisions limiting arbitration if the affected employee alleging the harassment or assault chooses. The law would not prevent arbitration if desired by both parties, only the enforcement of a clause forcing arbitration.

Statement by the Office of Management and Budget

The statement released by the Office of Management and Budget included these words in support of passing the bill:

Under prior law, many employment and other contracts require binding arbitration for a wide range of matters before a dispute arises, which denies survivors the ability to decide whether to pursue their claim with the procedural protections provided by courts, and silences victims of abuse by forcing them into a confidential dispute forum without the right to appeal. More than 60 million Americans are subject to mandatory arbitration clauses in the workplace, often without realizing it until they come forward to bring a claim against their employer.

The statement then included references to additional restrictions on forced arbitration as a condition of employment, including discrimination by basis of race, cases of wage theft left under arbitration in many states due to recent court rulings, and unfair labor practices.

Sexual Harassment Lawsuits

Sexual harassment is prohibited in the workplace. Title VII of the Civil Rights Act of 1964 guarantees a discrimination-free workplace and includes a prohibition on sexual harassment, which is a type of gender discrimination.

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