The following article was first posted on Berchem Moses’ Labor and Employment Law Journal. It is reposted here with permission.
In an effort to remove clouds of secrecy that may surround sexual misconduct claims, President Joe Biden recently signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act into law.
Arbitration is typically a confidential process, while court proceedings are public. To bring more sexual misconduct claims into public forums, this act amends the federal Arbitration Act to prohibit mandatory arbitration of claims of sexual assault and sexual harassment.
Most employers do not have contracts with employees that specifically state that claims of sexual assault and sexual harassment must be arbitrated.
However, it is common for employment contracts to require the arbitration of all disputes related to the employment relationship. Such agreements are affected by the new law.
The law prohibits pre-dispute arbitration agreements and pre-dispute joint-action waivers (prohibiting the right to class actions and similar actions) to the extent they apply to disputes regarding sexual assault or sexual harassment.
It does not prohibit an agreement to arbitrate once a dispute has arisen.
For contracts already in place, arbitration mandates are no longer valid or enforceable with respect to sexual assault disputes or sexual harassment disputes.
In the event an agreement provides for mandatory arbitration, the person...
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