On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. This Act allows individuals asserting claims of workplace sexual assault or sexual harassment to file their case in court, even if they signed pre-dispute arbitration agreements. The Act also allows individuals to bring such claims as class actions or collective actions, even if they signed pre-dispute waivers. The Act applies to claims under Federal, state and tribal laws, and went into effect when it was signed.
Employers and employees in New York may recall that in 2018, the State amended its Human Rights Law in an effort to ban mandatory arbitration of employment discrimination claims. In subsequent lawsuits, courts held that the State law amendment was invalid under the Federal Arbitration Act (“FAA”). The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act responds in part to those court decisions by amending the FAA. The Act does not go as far as New York tried to go by prohibiting mandatory arbitration of all workplace discrimination claims, but does amend the FAA to prohibit mandatory arbitration of workplace sexual assault and sexual harassment claims.
Employers whose agreements require employees to arbitrate all employment-related claims should be aware that those agreements may not be enforceable, at least regarding claims of workplace sexual assault or sexual harassment. The Act further provides that any question about the enforcement of such agreements should be resolved by the courts and not by arbitration.
If you have questions or concerns about the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act or workplace discrimination, please contact Chaim Book at cbook@mb-llp.com or Sheryl Galler at sgaller@mb-llp.com.
