The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which Congress passed on February 10, 2022, lets individuals choose whether to arbitrate or take their sexual assault or sexual harassment claims to court.
How the New Law Works
The bipartisan legislation, which President Joe Biden was expected to sign, takes aim at predispute arbitration agreements (i.e., those entered into before any conflict has actually arisen) and predispute joint-action waivers (i.e., those made before any dispute has arisen and that waive the individual’s ability to file the case as a joint, class, or collective action).
The Act defines “sexual assault dispute” as a conflict involving a nonconsensual sexual act or sexual contact, including when the victim lacks the capacity to consent. A “sexual harassment dispute” is defined as a conflict relating to:
- Unwelcome sexual advances;
- Unwanted physical contact that is sexual in nature, including assault;
- Unwanted sexual attention, including unwanted sexual comments and propositions for sexual activity;
- Conditioning professional, educational, consumer, health care, or long-term care benefits on sexual activity; or
- Retaliation for rejecting unwanted sexual attention.
If President Biden indeed signs the Act as expected, it will apply to any sexual assault or harassment dispute or claim that arises or accrues on or after the measure is enacted.
Any issues about whether the Act applies to a particular dispute would be governed by federal law, and any matters regarding its applicability to a specific agreement, including conflicts related to the agreement’s validity or enforceability, would be determined by a court, not an arbitrator.
Considerations for Employers
Employer rights. Since the Act will likely become official soon, you should contact labor and employment counsel to review your arbitration agreements. The legislation permits individuals to decide whether their arbitration agreement would be considered valid or enforceable with respect to a case filed under federal, tribal, or state law that relates to a sexual assault or sexual harassment dispute. As a result, arbitration agreements may need specific language to protect your ability to proceed with arbitration for nonsexual assault and nonsexual harassment disputes.
Severed claims? The Act doesn’t seem to directly address at least one important scenario, i.e., when an employee has multiple types of disputes. For example, as can be common with employment cases, the individual may claim sexual harassment along with racial harassment, age discrimination, or failure to pay overtime. An arbitration agreement would cover all of the disputes. Under the new legislation, however, only the sexual harassment dispute could be taken to court at the individual’s election.
Depending on how the Act is interpreted, individuals may choose to sever their sexual harassment claims from the other employment-related disputes, leaving you with the possibility of resolving the same person’s allegations in two separate forums.
More to come. You should continue to stay apprised of the Biden administration’s focus on arbitration agreements in general. Other currently proposed bills take broader aim at arbitration agreements, seeking to invalidate them for disputes beyond sexual misconduct. Whether the proposed laws garner the same bipartisan support as the Act is unclear, but it’s certainly a trend to track.
Paige Hoster Good is an attorney in the Oklahoma City, Oklahoma, office of McAfee & Taft. You can reach her at paige.good@mcafeetaft.com.