President Biden is expected to sign H.R.4445, “Ending Forced Arbitration of Sexual Assault and Sexual Harassment
Act of 2021” to amend the Federal Arbitration Act in Chapter 9 of the U.S. Code
and permit sexual harassment victims to reject mandatory pre-dispute
arbitration and class action waivers of sexual assault, sexual contact and
harassment claims. It will apply to any disputes or claims which
arise or accrue after the Act’s enactment. Courts and not arbitrators
will determine the applicability of the statute, regardless of the terms of any
agreement to the contrary. “An issue as to whether this chapter applies
with respect to a dispute shall be determined under Federal law.”
The text of the statute applies only to pre-dispute waivers,
such as contained in employment and separation agreements. Only
named class representatives can make the decision, not unnamed members of the
class. The Act applies to sexual harassment that arises under any
federal, state or tribal law. The criminal statute cited by the statute
defines sexual contact to include:
the intentional touching, either
directly or through the clothing, of the . . . , groin, breast,
inner thigh, or buttocks of any person with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of any person;
(I have edited this quotation to avoid getting caught in
spam software, which is why I am also not quoting the criminal statute for
sexual assault at 18 U.S.C. §2246).
The “meat” of the Act is as follows:
§ 402. No validity or
enforceability.
“(a) In General.—Notwithstanding
any other provision of this title, 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.
“(b) Determination Of
Applicability.—An issue as to whether this chapter applies with respect to a
dispute shall be determined under Federal law. The applicability of this
chapter to an agreement to arbitrate and the validity and enforceability of an
agreement to which this chapter applies shall be determined by a court, rather
than an arbitrator, irrespective of whether the party resisting arbitration
challenges the arbitration agreement specifically or in conjunction with other
terms of the contract containing such agreement, and irrespective of whether
the agreement purports to delegate such determinations to an arbitrator.”.
As mentioned, it also amends the Federal Arbitration Act by
adding the new Chapter 4 to the Table and as follows:
§ 2 A
written provision in any maritime transaction or a contract evidencing a
transaction involving commerce to settle by arbitration a controversy
thereafter arising out of such contract or transaction, or the refusal to perform
the whole or any part thereof, or an agreement in writing to submit to
arbitration an existing controversy arising out of such a contract,
transaction, or refusal, shall be valid, irrevocable, and enforceable, save
upon such grounds as exist at law or in equity for the revocation of any
contract OR AS OTHERWISE PROVIDED IN CHAPTER 4.
§208 APPLICATION. Chapter
1 applies to actions and proceedings brought under this chapter to the extent
that chapter is not in conflict with this chapter or the Convention as ratified
by the United States. THIS CHAPTER APPLIES TO THE EXTENT THAT THIS
CHAPTER IS NOT IN CONFLICT WITH CHAPTER 4.
§307. APPLICATION. Chapter
1 applies to actions and proceedings brought under this chapter to the extent
chapter 1 is not in conflict with this chapter or the Inter-American Convention
as ratified by the United States. THIS CHAPTER APPLIES TO THE EXTENT
THAT THIS CHAPTER IS NOT IN CONFLICT WITH CHAPTER 4.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to different
results. Information here can change or be amended without notice. Readers
should not act upon this information without legal advice. If you have any
questions about anything you have read, you should consult with or retain an
employment attorney.
