On February 10th, Congress passed a groundbreaking new law that will amend certain sections of the Federal Arbitration Act, and allow victims of workplace sexual harassment and sexual assault to have their day in court. Called the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” (H.R. 4445), this law passed with overwhelming bi-partisan support. In a starkly divided house and senate, this signals congress’s commitment to taking sexual assault and sexual harassment seriously in the wake of the #metoo movement. This bill has significant benefits for workers and may shape up to be a fatal blow to employers’ use of forced arbitration agreements.
Workers now have options for litigating sexual harassment and sexual assault claims
This bill will make pre-dispute forced arbitration agreements unenforceable in cases involving sexual harassment and sexual assault. This means workers will no longer be forced into secretive forced arbitration processes that disproportionately favor employers. Workers who value the privacy inherent to these arbitration processes will still have the option to go through with a voluntary arbitration process, but they will no longer be forced to give up their day in court.
Under H.R. 4445 courts will now decide if a claim is subject to an arbitration agreement, not the arbitrators, meaning if workers choose to take their case to court, it will likely stay there.
Workers can take part in joint, class and collective actions for sexual harassment and assault claims
Often, forced arbitration agreements include language where workers sign away their rights to take part in joint, class, and collective actions. Because of H.R. 4445, this language will be unenforceable. This mean workers will have the right to pursue joint, class, and collective actions in cases involving sexual harassment and sexual assault restored. Now victims can work together to hold perpetrators responsible and send a powerful message to employers and perpetrators.
Workers will no longer be silenced with forced arbitration agreements
Now that workers have the option to litigate claims of sexual harassment and sexual assault in court, they can publicly speak about their experiences. This will help reform the culture of imposed silence around workplace sexual assault and harassment claims. This also means that perpetrators will no longer be able to skirt public accountability to find other victims.
Employers will be forced to take workplace sexual harassment and sexual assault allegations seriously
Due to the higher cost associated with forced arbitration processes and its lack of transparency, workers governed by forced arbitration agreements rarely file claims against their employers. Because those agreements will now be unenforceable in cases involving sexual harassment and sexual assault, workers are likely to actually pursue claims against their employers. Employers who are complicit in sexual harassment and sexual assault disputes will finally be held accountable, as they can no longer hide behind secretive forced arbitration processes to avoid repercussions. Because of the public nature of court proceedings perpetrators will no longer be protected by the forced silencing of victims and the complicity of employers. This will force employers to contend with perpetrators within their organizations properly.
This bill signals an effort to end to forced arbitration in other workers’ rights disputes
The Biden administration has strongly signaled that this bill is likely the first step in ending forced arbitration for all workers’ rights violations, saying “The Administration also looks forward to working with the Congress on broader legislation that addresses these issues as well as other forced arbitration matters, including arbitration of claims regarding discrimination on the basis of race, wage theft, and unfair labor practices.” Forced arbitration is commonly used to settle workers’ claims of violations of the Civil Rights Act, Americans with Disabilities Act, Family and Medical Leave Act, and Fair Labor Standards Act.