President Biden Signs Bill Ending Forced Pre-Dispute Arbitration Of Workplace Sexual Harassment Claims

• Published date: 07 March 2022
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Employment Litigation/ Tribunals, Arbitration & Dispute Resolution
• Law Firm: WilmerHale
• Author: Mr Jonathan Rosenfeld, Laura E. Schneider, Debo Adegbile, Brenda E. Lee, Andrew Stauber and Michael J. Lenzi

Following a rare showing of bipartisan support, yesterday President Biden signed into law a landmark bill making it easier for individuals to pursue workplace sexual harassment claims in court and striking a blow to arbitration of the same.

According to the White House, over 60 million American workers are currently subject to mandatory arbitration provisions, which &ldldquo;silence[] victims of abuse by forcing them into a confidential dispute forum without the right to appeal." As a result of H.R. 4445, also called the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, these employees will now have an option to sue their employers in court'at least for claims of sexual harassment and sexual assault. The new law amends the Federal Arbitration Act (FAA) to prohibit enforcement of contract provisions that mandate pre-dispute arbitration or waive the right to bring a joint, class or collective action in cases involving workplace sexual harassment and sexual assault disputes, including claims brought under state antidiscrimination laws. These changes invalidate any current pre-dispute agreement forcing an employee to arbitrate a case related to a sexual harassment or sexual assault dispute, except as to disputes that have already arisen or accrued prior to enactment of the new federal law.

Notably, the law includes an exception allowing arbitration of such cases if an employee elects to arbitrate a specific case after the alleged conduct has occurred. Additionally, the law only bars enforcement of pre-dispute arbitration "with respect to a case [that] relates to the sexual assault dispute or the sexual harassment dispute." (Emphasis added.) However, there is still uncertainty as to whether this provision is intended to permit all claims in a "case" involving a claim of sexual harassment or sexual assault to bypass mandatory arbitration, or whether employees subject to a mandatory arbitration provision who pursue their sexual harassment or sexual assault claims in court may still be required to arbitrate any other claims they may have.

Employers should also be aware of state laws that purport to go further than the new federal law in limiting an employer's ability to compel arbitration. New York, New Jersey and California have all recently passed laws that prohibit the use of mandatory pre-dispute arbitration for any employment-related discrimination, harassment or retaliation claim.¹ Courts have generally...