Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021: What Workers Need to Know

In mid-February 2022, both the U.S. House of Representatives and the U.S. Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. President Biden has signaled his strong support for this bipartisan legislation and is expected to sign the bill, turning it into law. The law is meant to protect the rights of employees who are victims of sexual assault or sexual harassment in the workplace by preventing their employers from forcing them to arbitrate their claims of illegal assault or harassment instead of being able to bring those claims in a court of law.

What is Forced Arbitration All About?

Forced arbitration is a controversial employment practice used by many businesses which requires employees to agree to arbitrate legal disputes with the business rather than going to court. Forced arbitration occurs when an employer conditions initial employment, continued employment, or important employment benefits on the employee's agreement to arbitrate any future claims against the employer. Companies use such arbitration agreements to bar access to the courts for all types of legal claims, including employment discrimination and sexual harassment claims based on Title VII of the Civil Rights Act, protections for employees with disabilities under the Americans with Disabilities Act, rights to maternity and medical leaves based on the Family and Medical Leave Act, and rights to minimum wages and overtime under the Fair Labor Standards Act. If an employment right protected by a federal or state law has been violated and the affected worker has signed a mandatory arbitration agreement, that worker does not have access to the courts and instead must handle the claim through the arbitration procedure set out in the arbitration agreement he or she was required to sign by their employer.

What Will the New Law Do to End Forced Arbitration for Sexual Assault and Harassment Claims?

Once signed into law by President Biden, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 will bring an end to companies using arbitration agreements to force workers who are victims of sexual assault or sexual harassment in the workplace to take their claims to arbitration. In cases where a worker is the victim of sexual assault or sexual harassment, the employee can now choose to take their claims to court.

Under the Act sexual harassment is defined as conduct including 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; and/or retaliation for rejecting unwanted sexual attention. Workers who are victims of such conduct will no longer be forced to arbitrate their claims.

The law will amend the Federal Arbitration Act (FAA) in three important ways:

  1. Invalidate employment pre-dispute agreements and class action waivers that require claims related to sexual assault or sexual harassment to be arbitrated on an individual basis;
  2. Ensure that the employee who signs an arbitration agreement has complete autonomy in deciding whether to arbitrate sexual harassment or sexual assault claims or choose to pursue such claims, either individually or on a collective basis, in court; and
  3. Provide that regardless of the contractual terms of the arbitration agreement, the enforceability of the agreement must be decided by a court, not an arbitrator.

This means the law will bar the use of clauses in employment contracts that force survivors of sexual misconduct into a private arbitration process. In other words, under this new law, if a worker has signed an arbitration agreement that says it covers claims of sexual assault or sexual harassment in the workplace, the worker is not required to follow the arbitration agreement for those claims. A worker who has signed an arbitration agreement and later suffers sexual assault or sexual harassment on the job, can choose to go to court and sue under state or federals laws instead. The Act allows employees to choose to bring their claims in court where the rules and procedures are designed to better protect their rights and hold companies accountable for sexual assault and sexual harassment suffered by employees on the job.

For more information see:

Arbitration Agreements

The growing use of mandatory arbitration

Mandatory Arbitration Clauses Are Discriminatory and Unfair

Google employees fought for their right to sue the company — and won

INSIGHT: Forced Arbitration Is Bad News for Employees, California Stats Show