Since the #MeToo movement began in 2017, legislators have enacted various legal reforms aimed at reducing and eliminating sexual assault and sexual harassment in the workplace. Many of the changes have been on the state level, including in New York. Recently, on Feb. 10, 2022, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the SASH Act). Despite the partisan split in Congress, the SASH Act received overwhelming bipartisan support. Soon after, on March 3, 2022, President Biden signed the SASH Act into law. The SASH Act amends the Federal Arbitration Act (FAA) to prohibit employers from enforcing predispute arbitration agreements or joint-action waivers relating to sexual assault or sexual harassment disputes brought under federal, tribal or state law.

Key Terms and Purpose of the SASH Act

The SASH Act defines a predispute arbitration agreement as "any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement." A predispute joint-action waiver is defined as "an agreement [] that would prohibit, or waive the right of, one of the parties to the agreement to participate in a joint, class, or collective action [] concerning a dispute that has not yet arisen at the time of the making of the agreement." The SASH Act invalidates both predispute arbitration agreements and predispute joint action waivers "with respect to a case which is filed under federal, tribal, or state law and relates to the sexual assault dispute or the sexual harassment dispute" unless "the person [or] named representative of a class or in a collective action" elects otherwise.

In other words, claimants now have the choice to bring sexual assault or sexual harassment claims in court or proceed to arbitration—notwithstanding any agreement they may have signed requiring such claims to be resolved through arbitration. Claimants may also choose to bring suit individually or as a class, even if they signed an agreement waiving their right to collective legal action. As President Biden stated prior to signing the SASH Act, "there will be cases where victims want their claims resolved in private. But some survivors will want their day in court. And that should be their choice and nobody else's choice."