On March 3, 2022, President Biden signed into law H.R. 4445 Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. The legislation passed Congress with bipartisan support. The #MeToo-inspired bill is intended to allow sexual assault and sexual harassment survivors to have their day in court, try their claims before a jury, and prevent the concealment of their allegations. While this bill only relates to sexual harassment and sexual assault claims, the Biden Administration hopes to work with Congress to create similar legislation for race discrimination, wage theft, and unfair labor practice claims. The law is effective as to any dispute or claim that arises or accrues on and after the date of enactment.
The bill amends the Federal Arbitration Act in three important ways. First, it prohibits employers from enforcing a “pre-dispute arbitration agreement” for sexual harassment or sexual assault claims, but allows employees to agree to arbitrate after the claim has arisen. Second, the legislation prohibits employers from enforcing an agreement that waives the right of an employee or other protected individual worker to participate in a joint, class, or collective action concerning sexual harassment or sexual assault claims that have not yet arisen. Third, the bill states that a court, rather than an arbitrator, will determine whether the new law applies to a particular agreement and whether an agreement is valid and enforceable under the new law.
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