President Biden Declares an End to Mandatory Arbitration of Sexual Harassment / Sexual Assault Claims

On March 3, 2022, President Biden signed into law H.R. 4445, titled “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.”  This new law, which goes into effect immediately, amends the Federal Arbitration Act (“FAA”) to render unenforceable, at the employee’s election, any pre-dispute agreements to arbitrate matters alleging sexual harassment and/or sexual assault in the workplace under federal, state, local or tribal law. 

The new law also makes unenforceable, at the election of the employee, pre-dispute joint action waivers that would otherwise prevent employees from participating in collective action lawsuits alleging sexual harassment and/or sexual assault.  To the extent that issues are raised concerning the validity and enforceability of these pre-dispute arbitration agreements or joint action waivers, those determinations would be made by a court of law, rather than through the arbitral forum. 

Employers should carefully review existing written agreements with their employees and consider modifying any pre-dispute arbitration agreements or joint action waivers contained in such agreements. 

Read more in our Client Alert below.