Congress Passes Bipartisan Legislation Banning Forced Arbitration of Sexual Harassment and Assault Claims

Bipartisan legislation banning forced arbitration of sexual harassment claims has passed both the House and Senate. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445). H.R. 4445 amends the Federal Arbitration Act to invalidate mandatory arbitration provisions that waive an employee’s right to file an individual or class action suit for workplace sexual assault or harassment. An employee may nevertheless voluntarily choose to arbitrate his or her claims.

H.R. 4445 does not invalidate mandatory arbitration provisions for discrimination claims or harassment claims based on other protected categories. The distinction is likely to lead to litigation forcing courts to decide how to handle cases alleging multiple types of claims, such as sexual harassment and harassment based on race.

The law will apply to claims that arise on or after the bill is enacted, and President Biden is expected to sign it soon. Employers should reevaluate their arbitration provisions and class action waivers to ensure their agreements remain enforceable.

To read more about The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, please click here.