Last week, The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 went into law.
The Act amends the Federal Arbitration Act and allows employees who are subject to mandatory arbitration agreements to proceed with sexual harassment and sexual assault claims in court. The Amendment also prevents the mandatory enforcement of agreements that prohibit joint, class, or collective action cases relating to sexual harassment and sexual assault.
The Amendment applies to all disputes that arise on or after March 3, 2022. Prior cases that have already been decided through arbitration, or cases that are in ongoing arbitration, cannot be litigated in court.
The Amendment does not affect the arbitration of other types of claims, but employers should pay close attention when evaluating the types of claims made by an employee before seeking to compel arbitration. The Amendment provides a broad definition of sexual harassment and assault. A “sexual harassment dispute” is defined as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” A “sexual assault dispute” is defined as “a dispute involving a nonconsensual sexual act or sexual conduct.” The applicability of the law to a given case will be decided under federal law by a federal judge, not an arbitrator.
Employers should carefully review their arbitration agreements and practices to ensure they comply with the Amendment, in addition to other federal and state laws. If you have any questions regarding employment arbitration agreements, please contact Jim O’Connor, Rachel Felton, or another member of our employment law team.
This post was written by Rachel Felton and law clerk Meghan Mesojedec.