Finally, we are one step closer to changing the landscape for victims of workplace sexual harassment. Upon President Biden’s signature, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”) will no longer mandate pre-dispute arbitration for claims of sexual assault or sexual harassment by employers. Historically, mandatory arbitrations have silenced victims of workplace sexual harassment and sexual assault by forcing them out of the court system and into a confidential dispute forum. This enabled companies to sweep sexual harassment and discrimination under the rug, which resulted in further sexual harassment and sexual assaults.
However, Congress finally passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 ending any dispute as to whether the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (FAA), preempted state laws seeking to prohibit mandatory pre-dispute arbitration of employee sexual harassment claims. The Act amends the FAA and makes pre-dispute arbitration agreements between employers and employees that would otherwise obligate the parties to arbitrate claims of sexual assault or sexual harassment invalid and unenforceable.
The Act also prohibits agreements that waive an employee’s right to participate in a joint, class, or collective action in court, arbitration, or any other forum that relates to a sexual assault dispute or a sexual harassment dispute, which is another big win for workers; rights.
Another key point is that the Act applies retroactively, invalidating any existing arbitration agreement which forces parties to arbitrate sexual harassment and sexual assault disputes on an individual basis or as a class or collective action.
If there is a dispute about whether a particular claim qualifies as a sexual assault dispute or sexual harassment dispute, a court, not an arbitrator, is to answer that question, even if there is a contractual term to the contrary.
Unfortunately, the Act still permits employers to mandate employees arbitrate many employment claims including discrimination (i.e. race discrimination or even gender discrimination claims not based on allegations of sexual harassment or sexual assault), retaliation, and wage and hour claims.
What does this mean for you
In response to the Act, if you have been the victim of sexual harassment and are being forced to arbitrate your sexual harassment claims instead of being able to go to the EEOC or Court, please contact Atlas Consumer Law immediately. The passage of time can eliminate your right to sue. To report abuse or obtain more information about your rights and remedies, please call or complete the form. If you have