Open Questions After Enactment of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act
The new law raises a host of legal, practical, and political questions as to the continuing viability of agreements to arbitrate claims of sexual harassment and assault—and employment disputes more broadly.
June 02, 2022 at 12:00 PM
7 minute read
This spring ushered in a new chapter for employment arbitration law. On March 3, 2022, after years of political wrangling, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the Act). The Act adds a new Chapter 4 to the Federal Arbitration Act (FAA).
Chapter 4 empowers a person "alleging conduct constituting a sexual harassment dispute or sexual assault dispute" to make an "election" invalidating a pre-dispute agreement to arbitrate "with respect to a case which … relates to the sexual assault dispute or the sexual harassment dispute." 9 U.S.C. §402(a). The Act further empowers "the named representative of a class or in a collective action alleging such conduct" to invalidate pre-dispute waivers of class and collective actions "with respect to" such a case. 9 U.S.C. §402(a).
The new law raises a host of legal, practical, and political questions as to the continuing viability of agreements to arbitrate claims of sexual harassment and assault—and employment disputes more broadly. We briefly explore some of those questions below.
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