Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021
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With bi-partisan support, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 passed both the House of Representatives and the Senate this week. It has now been sent to President Biden for signature.
This Act prohibits employers, businesses, or individuals from enforcing arbitration agreements as to any claims alleging sexual assault or sexual harassment. Specifically, it prohibits the use of predispute arbitration agreements – an agreement to arbitrate a dispute that has not yet arisen at the time of the making of the agreement – for claims of sexual assault or sexual harassment. It also prohibits the use of predispute joint-action waiver – an agreement that would prohibit or waive the right of one of the parties to the agreement to participate in class or collective actions alleging sexual assault or sexual harassment.
Sexual assault is defined as any nonconsensual sexual act or sexual contact. Sexual harassment includes claims of unwelcome sexual advances; unwanted physical contact of a sexual nature; unwanted sexual attention, comments or propositions for sexual activity; conditioning professional, educational, consumer, health care, or long-term care benefits on sexual activity; and retaliation for rejecting unwanted sexual attention.
What does this mean? Employers with arbitration agreements cannot enforce those agreements as to sexual assault and sexual harassment claims, and they also cannot prohibit class or collective actions asserting these types of claims.
It also means that Congress is showing a willingness to ban or limit the use of employment arbitration agreements. Other legislation is pending in both houses that would further restrict or ban altogether the use of employment arbitration agreements. The enactment of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 may provide additional traction to those more broad-reaching efforts to ban arbitration.
Kemp Smith's Labor and Employment lawyers are available to assist with this and any other employment-related issues or questions.
This Act prohibits employers, businesses, or individuals from enforcing arbitration agreements as to any claims alleging sexual assault or sexual harassment. Specifically, it prohibits the use of predispute arbitration agreements – an agreement to arbitrate a dispute that has not yet arisen at the time of the making of the agreement – for claims of sexual assault or sexual harassment. It also prohibits the use of predispute joint-action waiver – an agreement that would prohibit or waive the right of one of the parties to the agreement to participate in class or collective actions alleging sexual assault or sexual harassment.
Sexual assault is defined as any nonconsensual sexual act or sexual contact. Sexual harassment includes claims of unwelcome sexual advances; unwanted physical contact of a sexual nature; unwanted sexual attention, comments or propositions for sexual activity; conditioning professional, educational, consumer, health care, or long-term care benefits on sexual activity; and retaliation for rejecting unwanted sexual attention.
What does this mean? Employers with arbitration agreements cannot enforce those agreements as to sexual assault and sexual harassment claims, and they also cannot prohibit class or collective actions asserting these types of claims.
It also means that Congress is showing a willingness to ban or limit the use of employment arbitration agreements. Other legislation is pending in both houses that would further restrict or ban altogether the use of employment arbitration agreements. The enactment of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 may provide additional traction to those more broad-reaching efforts to ban arbitration.
Kemp Smith's Labor and Employment lawyers are available to assist with this and any other employment-related issues or questions.
