On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445; referred to here as “EFAA”). The EFAA, which Congress passed with strong bipartisan support, amends the Federal Arbitration Act (“FAA”) to prohibit employers from using pre-dispute mandatory arbitration agreements to resolve sexual assault and sexual harassment claims. The law does not impact the enforceability of arbitration agreements with respect to legal claims other than sexual assault and sexual harassment, although Congress has proposed another now-pending bill which would expand the categories of employee legal protections, as discussed more fully below.
Key Provisions of the EFAA
Under the EFAA, employers may not enforce pre-dispute arbitration agreements for cases filed under federal, tribal, or state law related to sexual assault or sexual harassment disputes. However, employees may voluntarily elect arbitration as a forum to resolve their sexual assault or sexual harassment claims. Employers also may not use joint, class or collective action waivers in arbitration agreements to bar individuals from participating in class or collective actions related to sexual assault or sexual harassment disputes. The EFAA states that courts, not arbitrators, retain jurisdiction to determine whether an arbitration agreement’s provisions relating to sexual assault or sexual harassment and class action waivers are valid or enforceable.
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