On Thursday, March 3, President Biden signed into law HR 4445, the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” which prohibits mandatory arbitration for sexual assault and harassment claims in the workplace.

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The bill amends the Federal Arbitration Act (FAA) to allow employees and representatives of class or collective actions to choose to void pre-dispute arbitration agreements and joint-action waivers for all sexual harassment and sexual assault claims. While the law prohibits employees and other parties from being compelled to arbitrate their sexual harassment and sexual assault claims, these parties may still choose to arbitrate such claims after the dispute has arisen.

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Although the law applies retroactively to agreements that predate the enactment of the law, disputes and claims that arose or accrued before the enactment of HR 4445 are not covered by its provisions. Instead, HR 4445 applies “with respect to any dispute or claim that arises or accrues on or after” March 3, 2022.

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Importantly, courts—as opposed to arbitrators—must determine under Federal law the validity or enforceability of an applicable agreement, in spite of any terms within the agreement to the contrary.

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The bill defines “sexual harassment dispute” to mean “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, and State law.”  “Sexual assault dispute” is defined as “involving a nonconsensual sexual act or sexual contact.” Pre-dispute mandatory arbitration agreements of sex discrimination claims or claims based on other protected categories like age, race, or religion are not affected by the new law.

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If you have questions regarding this article, please contact Patrick Maloney or Lisa Von Eschen of the Maloney Firm’s Employment Law Department.

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