November 30, 2022

Volume XII, Number 334


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#MeToo2022: I’ll See You In Court, If I Want To – Congress Passes Ban on Mandatory Arbitration of Sexual Harassment and Assault Claims

In the wake of the #MeToo movement, several states, such as California, have taken steps to ban mandatory arbitration clauses that cover claims of sexual harassment and assault. However, such prohibitions have decidedly not been the norm across the U.S.

That all changed on Thursday, February 10, 2022, when the United States Senate voted to approve a bill that will invalidate and render unenforceable mandatory arbitration clauses nationally in cases “relating to sexual harassment disputes or sexual assault disputes.” The House of Representatives recently (on February 7, 2022) passed an identical version of the bill with significant bipartisan support. The bill is now only an expected signature—from President Biden—away from becoming law. Assuming its enactment, the bill will apply to “any dispute or claim that arises or accrues on or after the date of enactment,” meaning it will not retroactively apply to ongoing arbitrations, but will take immediate effect going forward.

Importantly, because victims of sexual assault or sexual harassment may not always view the confidentiality of arbitration as a bad thing, the bill gives the person alleging such conduct the option whether they want to invoke the arbitration clause or invoke the bill and proceed in court. This gives complainants—but not employers—more control over the forum in which their dispute is heard, and whether they want to keep their allegations private. The bill also clarifies that mandatory arbitration provisions are invalid and unenforceable not only for individual claims or allegations, but rather to any case related to a sexual assault or sexual harassment dispute. This means that employers with mandatory arbitration provisions may start to see claims of sexual harassment or sexual assault inserted into cases primarily concerning other protected categories or activities; in an attempt to invoke the protections of the bill and nullify a mandatory arbitration provision as to the entire case.

The bill further makes clear that disputes over whether the soon-to-be-enacted law applies (often referred to as the issue of arbitrability) must be decided by a court, not an arbitrator, even where the arbitration agreement attempts to delegate such authority to an arbitrator. Any disputes over arbitrability will also be governed by federal law.

While the bill text does not go so far as to invalidate a mandatory arbitration clause in any context just because it is written broadly enough to encompass a sexual assault dispute or sexual harassment dispute, employers should still review their mandatory arbitration clauses and consider revising them to carve out claims of sexual assault and sexual harassment, which soon would no longer be enforceable anyways, to minimize enforcement issues.

© 2022 Foley & Lardner LLPNational Law Review, Volume XII, Number 41

About this Author

Jessica Glatzer Mason, labor and employment lawyer, Foley Lardner

Jessica Mason is a labor and employment attorney who represents employers and executives in their labor and employment litigation pre-trial, trial and appellate matters around the United States and before administrative agencies, including the Texas Workforce Commission, the Equal Employment Opportunity Commission and the U.S. Department of Labor.

Jessica has particular experience in the area of unfair competition and the protection of trade secrets. She regularly represents clients in the courtroom in matters relating to non-competition agreements and theft of...

Michael Ryan, Employment Lawyer, Foley Gardere Law Firm

Michael Ryan is a labor and employment associate in Foley Gardere’s Houston office. His practice involves counseling employers on a wide-range of employment matters, including hiring and firing decisions, EEO and FLSA matters, enforcement of personnel policies, leave issues, accommodations, drug testing laws, classification of employees and other wage and hour matters, OSHA claims, safety regulations and governmental investigations. Michael represents clients of all sizes, including multinational corporations, local businesses and executives. He has represented clients in various sectors,...