Yesterday, the U.S. Senate passed by voice vote the "Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act." The legislation passed the House on Monday, and President Biden is reportedly in favor of it, so it is expected to soon become law.
The legislation, inspired by the #MeToo movement, would amend the Federal Arbitration Act, which is nearly 100 years old and strongly favors the arbitration of disputes (with limited exceptions). H.R. 4445 would make new exceptions to this general rule, providing that pre-dispute arbitration agreements and pre-dispute waivers of class claims are not enforceable when a person files suit in a federal, state, or tribal court alleging sexual assault or sexual harassment.
According to Sen. Richard Durbin (D-IL), who spoke in favor of the legislation, "Forced arbitration clauses not only deny survivors their right to a day in court, they also conceal their allegations from public view. That is a green light for abusers to continue harming and harassing victims."
The legislation applies to all claims of sexual assault or harassment, whether they arise under federal, state, or tribal law. However, it does not prohibit a plaintiff from agreeing to arbitration after the claim has arisen.
The legislation also provides that the decision about whether a particular claim is governed by H.R. 4445 must be made by a court applying federal law, not by the arbitrator.
H.R. 4445 would apply to any sexual assault or harassment claims that arise or "accrue" after the legislation becomes law. Thus, it would not apply retroactively in arbitrations that are already pending or, apparently, to sexual assaults or harassment that "accrued" before the legislation was enacted.
The legislation had bipartisan support. The lead co-sponsors in the Senate were Sens. Kirsten Gillibrand (D-NY) and Lindsay Graham (R-SC). Sen. Joni Ernst (R-IA) also spoke in favor of the legislation.
Although H.R. 4445 is limited in scope, an article in last night's Wall Street Journal said that President Biden hopes to see the enactment of exceptions to the FAA for other employment-related claims, including "racial discrimination, wage disputes, and labor practices."
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