August 16, 2022

Volume XII, Number 228

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August 15, 2022

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Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act Heads to President’s Desk

On February 10, 2022, the U.S. Senate passed S. 2342, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, just a few days after the U.S. House of Representatives passed the bill, H.R. 4445, on February 7, 2022. If signed by President Biden as expected, the bill would make predispute arbitration agreements or joint-action waivers invalid and unenforceable “with respect to a case which is filed” that “relates to” a sexual assault or sexual harassment dispute, “at the election of the person alleging” the misconduct. According to the bill, whether this prohibition applies to an arbitration agreement and general claims regarding “the validity and enforceability” of such an arbitration agreement must “be determined by a court, rather than an arbitrator.”

Key Definitions

The bill defines the key terms as follows:

  • A “predispute arbitration agreement” is “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.”

  • A “predispute joint-action waiver” is defined as “an agreement, whether or not part of a predispute arbitration agreement, that would prohibit, or waive the right of, one of the parties to the agreement to participate in a joint, class, or collective action in a judicial, arbitral, administrative, or other forum, concerning a dispute that has 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, 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 “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.”

Key Takeaways

If President Biden signs the bill, employers should review their mandatory arbitration agreements and class action waivers for any needed revisions, whether legally required or to comply with generally accepted best practices, including direction on what happens when some asserted claims are subject to arbitration and some are not. As employers prepare to comply with the bill if signed, they also should note the following:

  • The legislation would take effect immediately and apply to all existing arbitration agreements, even those signed prior to the bill’s enactment.

  • An employer and employee still could agree to arbitrate a sexual assault or sexual harassment dispute after it arises.
© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 41
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About this Author

Ron Chapman, Ogletree Deakins Law Firm, Employment and Litigation Attorney
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Ron serves on the Firm’s Board of Directors. He is Board Certified in labor and employment law by the Texas Board of Legal Specialization and represents employers in all areas of labor and employment law, including discrimination, harassment, retaliation, wage and hour, class and collective actions, non-competition and non-disclosure covenants, leaves of absence, employment agreements and policies, union campaigns, collective bargaining, unfair labor practices, and workplace safety. Ron successfully coordinates work throughout the firm’s many offices for clients with...

214-369-9216
Christopher Murray, Ogletree Deakins Law Firm, Employment and Litigation Attorney
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Chris Murray is an experienced litigator. With a particular focus on labor and employment litigation and counseling, Chris represents management in a broad variety of matters, including:

Individual claims in agency and court actions. Defends clients in administrative proceedings and in federal and state court litigation against claims of age, race, sex, and disability discrimination, wage and hour violations, and retaliation, among others. Has obtained numerous favorable summary judgment rulings in such cases.

317-916-2522
Hera S Arsen PhD
Managing Editor of Firm Publications

Hera S. Arsen, J.D., Ph.D., is Managing Editor of the firm's publications, overseeing the firm's print and online legal publications and content. Hera, who joined Ogletree Deakins in 2003, is directly responsible for writing and editing the firm's national legal content, including coverage of federal agencies and the Supreme Court of the United States. She also oversees the Ogletree Deakins blog, which covers the latest legal news from over 20 practice-areas and jurisdictions. As leader of the firm's blog, Hera writes blog posts on a variety of legal issues, edits...

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