Ending Forced Arbitration For Allegations Of Sexual Assault And Sexual Harassment

• Published date: 22 March 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Arbitration & Dispute Resolution, Class Actions
• Law Firm: Cowles & Thompson, PC
• Author: Brian T. Farrington

Effective immediately, employer-employee arbitration agreements common in business may no longer compel employees to arbitrate disputes concerning allegations of sexual assault or sexual harassment. This is the result of the enactment of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act ("EFA"), H.R. 4445. The EFA amends the Federal Arbitration Act to say that:

...at 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, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable 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.

The Ending Forced Arbitration Act and Class Actions

Notably, the EFA voids the class or collective action waivers common in arbitration clauses. Many arbitration clauses not only require the employees who sign them to waive their rights to go to court in employment disputes, but also limit arbitration to single employee claims, not class actions. This removes a major advantage for employers.

The law also provides that the determination of whether a dispute is covered by the EFA is made by a judge, not by an arbitrator.

Ending Forced Arbitration Act is Retroactive

Employers should be aware that the law is not only effective immediately, it is retroactive. That is, even if an employee signed an arbitration agreement...