PHILADELPHIA, PA, March 23, 2022 – Facebook and Google may have stopped requiring arbitration for workplace sexual assault and harassment claims but forced arbitration clauses have been the standard for a majority of employment claims.  The Economic Policy Institute reports that approximately 56 percent of non-union private-sector employees are subject to mandatory individual arbitration procedures; this translates into approximately 60 million American workers. 

Forced arbitration clauses often result in an employee being required to go through a private proceeding with his or her employer after bringing an accusation of workplace sexual assault or harassment. Even though arbitration clauses do not prevent employees from going to the police in the case of a serious crime, companies often make signing an arbitration clause a condition of keeping or getting a job.  It is not unusual to see confidentiality clauses along with forced arbitration clauses, all of which can discourage the employee from reporting the misconduct. 

On March 3, 2022 a landmark bill was signed into law by President Biden that will make it easier for individuals to pursue workplace sexual abuse and harassment claims by striking a blow to the pre-dispute arbitration agreements. The law amends the Federal Arbitration Act 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 that involve workplace sexual assault and harassment disputes.

The new law, H.R. 4445, “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act”, applies to any such disputes that arise after March 4, 2022.  The law broadly defines a pre-dispute arbitration agreement as “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement”.  A “sexual assault dispute” is defined as a dispute involving a nonconsensual sexual act or sexual contact, including when a victim lacks capacity to consent. A “sexual harassment dispute” is a dispute relating to conduct that is alleged to constitute sexual harassment under applicable federal, tribal or state law. Sexual harassment disputes include unwelcome sexual advances; unwanted physical contact that is sexual in nature, including assault; unwanted sexual attention, including unwanted sexual comments and 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. Notably, if the parties disagree as to whether the law covers a particular dispute, the determination is one for a federal court and not an arbitrator.

By eliminating mandatory arbitration clauses this law is one additional step towards enabling victims to publicly hold their abusers accountable in court if they choose.

Williams Cedar represents employees in workplace sexual harassment and assault cases. You can request a free consultation by contacting us.