The U.S. Senate passed a bipartisan bill aimed at preventing employers from requiring workers to arbitrate sexual harassment and assault claims. The bill will now go to President Biden for his expected signature.
The bill, known as the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, will amend the Federal Arbitration Act to prohibit enforcement of contract clauses that require arbitration of workplace sexual harassment or assault claims. For purposes of this bill, sexual assault means a nonconsensual sexual act or contact, as defined under federal law, or applicable tribal or state law, including when the victim lacks capacity to consent. Sexual harassment is defined by applicable federal, tribal or state law. As a result, employees would be free to pursue such claims in court, although they would still be allowed to pursue arbitration, at their option. Notably, other civil rights claims, including gender or race discrimination, are not covered by this bill, and can still be included in mandatory arbitration provisions. This bill also would not alter existing requirements that claims under Title VII be exhausted through initial filing with the EEOC or applicable state or local agency.
Support for this bill was widespread in the wake of the #MeToo movement, which brought sexual harassment and assault in the workplace to light. Many employee advocates have claimed that many victims of workplace sexual harassment could not have their rights fully vindicated, including public airing of their claims, due to agreements requiring private arbitration. Some states have already imposed restrictions on arbitration of sexual harassment and sexual assault claims as a result. To date, these efforts, like this bill, generally have not expanded to prohibiting arbitration of other employment claims, including gender discrimination claims that do not involve allegations of sexual harassment and sexual assault.
Once the bill takes effect, employers should revise any arbitration provisions in their employment agreements, arbitration agreements and other contracts to ensure that claims of workplace harassment and assault are carved out of any mandatory arbitration provisions.