July 2, 2022

Volume XII, Number 183

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Congress Passes Bill Prohibiting Mandatory Arbitration and Class Action Waivers for Sexual Harassment and Sexual Assault Claims

Today, the Senate passed H. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the “Act”), by a voice vote.  The bill had previously passed the House of Representatives by a vote of 335-97. The White House has indicated President Biden will sign the bill.

If enacted, the Act would amend the Federal Arbitration Act to prohibit enforcement of mandatory pre-dispute arbitration agreements, as well as agreements prohibiting participation in a joint, class or collective action in any forum, “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.”  The Act also provides that any dispute concerning whether a claim falls within the scope of the Act’s prohibitions will be decided by a court and not an arbitrator, irrespective of whether the arbitration agreement at issue purports to delegate such determinations to an arbitrator.

A “sexual assault dispute” is defined as one “involving non-consensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18 or similar applicable Tribal or State law, including when the victim lacks capacity to consent.”  A “sexual harassment dispute” is defined as one “relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.”

The new restrictions would apply “with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act,” meaning that once enacted, millions of American workers could elect to be released from existing arbitration agreements and/or class and collective action waivers as relating to sexual harassment and sexual assault claims that arise after the law goes into effect.  However, because the law only addresses pre-dispute arbitration and class/collection action waiver agreements, any agreement to arbitrate claims entered into by the parties after the claims arise remains enforceable.

© 2022 Proskauer Rose LLP. National Law Review, Volume XII, Number 42
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About this Author

Guy Brenner, Labor Attorney, Proskauer Rose, arbitration proceedings Lawyer
Partner

Guy Brenner is a partner in the Labor & Employment Law Department and co-head of the Non-Compete & Trade Secrets Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues,...

202-416-6830
Anthony J Oncidi, Employment Attorney, Proskauer Rose Law Firm
Partner

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office. Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection....

310-284-5690
Evandro Gigante Labor and Employment Lawyer Proskauer Rose Law FIrm
Partner

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents clients through a variety of labor and employment matters, including allegations of sexual harassment, race, gender, national origin, disability and religious discrimination. Evandro also counsels employers through reductions-in-force, employee relations issues and other sensitive employment matters.

With a focus on discrimination and harassment claims,...

212.969.3132
Laura M. Fant, Labor & Employment Attorney, Proskauer Law Firm
Associate

Laura M. Fant is an Associate in the Labor & Employment Department, resident in the New York office. She is a member of the Accessibility and Accommodations Practice Group, and frequently counsels on matters involving the Americans with Disabilities Act (ADA) and state public accommodation law, as well as disability accommodation in the workplace. She has experience conducting accessibility audits and providing ADA and accessibility training for clients in a variety of sectors, including retail, sports, and not-for-profit. Her practice also focuses on wage and hour...

212-969-3631
Law Clerk

Theresa Madonna is a law clerk in the Labor Department and a member of the Employment Litigation & Arbitration Group.

212-969-3592
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