President Biden is expected to sign a bill amending the Federal Arbitration Act by banning pre-dispute employment arbitration agreements for sexual harassment and sexual assault disputes. The proposed law, \u201cEnding Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,\u201d is the latest in a series of workplace changes initiated by the #MeToo movement.<\/p>\n
Sexual assault and harassment claims no longer subject to mandatory arbitration.<\/strong> The amendment prohibits the enforcement of mandatory pre-dispute arbitration agreements, as well as agreements prohibiting participation in a joint, class or collective action in any forum \u201cat the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct.\u201d The Act also provides that any dispute as to whether or not a claim falls within the scope of the Act\u2019s prohibitions will be decided by a court, not an arbitrator, irrespective of the designation set forth in the arbitration agreement. Although the bill bans pre-dispute agreements to arbitrate sexual harassment and sexual assault claims, employees can still voluntarily elect for arbitration after the claim arises. This carve-out was intended to allow victims of sexual assault or sexual harassment to voluntarily avoid going through the often-public process of the court system.<\/p>\n Under the legislation, the term \u201csexual assault dispute\u201d retains the same definition as used in 18 U.S. Code \u00a72246 as one \u201cinvolving non-consensual sexual act or sexual conduct.” The term \u201csexual harassment dispute\u201d is defined as one \u201crelating to conduct that is alleged to constitute sexual harassment.\u201d Sexual harassment is narrowly redefined under the Act to only include the following behaviors: a) unwelcome sexual advances, b) unwanted physical contact that is sexual in nature, including assault, c) unwanted sexual attention, including unwanted sexual comments and propositions for sexual activity, d) conditioning professional, educational, consumer, health care, or long-term care benefits on sexual activity, and e) retaliation for rejecting unwanted sexual attention. Notably, this definition does not include other forms of harassment that are not sexual in nature but may nonetheless constitute gender-based discrimination (e.g., disparate pay between similarly situated male and female employees).<\/p>\n