On February 10th, with overwhelming bipartisan support, Congress passed what may shape up to be one of the most groundbreaking employment laws passed in the last decades. Introduced in 2017, in the wake of high profile #metoo revelations the act titled “Ending Forced Arbitration of Sexual Assault and Sexual Harassment”, takes direct aim at the culture of imposed silence surrounding sexual harassment and assault in the workplace. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (H.R. 4445) amends part of the Federal Arbitration Act that props up forced arbitration agreements for sexual harassment and sexual assault claims. The FAA is a federal law that forces many workers to litigate employment disputes in private, secretive forums that heavily favor the defendants in a process called arbitration. While H.R. 4445 only amends the part of this law that deals with sexual harassment and sexual assault in the workplace and does not affect forced arbitration agreements for other employment disputes, it still has far reaching ramifications for workers.
Forced arbitration refers to a practice in which employers require workers to sign a contract saying they’ll submit any disputes to an arbitration process and give up their rights to court and a jury trial. These agreements often leave little actual choice for workers, as employment is often conditioned on signing the agreement—your options are either to sign or not take the job. Arbitration processes mean that the dispute will be handled privately by an arbitrator.. When signing these agreements, workers are agreeing to being bound by the arbitrator’s decision and relinquish any rights to bring the dispute before a court or contest the decision. Since most workers are not attorneys, they may not be realize what they are giving up.
Now, under H.R. 4445, these agreements are unenforceable in cases of sexual harassment and sexual assault. Workers bringing a sexual harassment and assault claim after the passage of the law now have the ability to choose between a voluntary arbitration process or taking their case in front of a federal, state, or tribal court. This alone will impact a significant amount of workers. A survey from the Economic Policy Institute shows almost 60 million American workers are subject to forced arbitration agreements.
Some workers may still choose voluntary arbitration for the privacy offered, but many are likely to take their cases to court, as this increases transparency and allows workers to defend their careers and protect others. The imposed silence stemming from forced arbitration agreements often means harassers are able to target multiple workers. Workers who are able to talk candidly about their experiences will be able to dispel rumors around why they may have left a job, as well as force employers to properly contend with harassers in the workplace.
H.R. 4445 will also allow workers to band together to take action in cases of sexual harassment and sexual assault disputes. Often, through arbitration agreements, workers are forced to sign away their right to joint, class, or collective action. H.R. 4445 once again makes any agreement barring workers from joint, class, or collective action unenforceable in cases of sexual harassment and assault disputes. Importantly, the law is retroactive, which means that any existing forced arbitration agreements are voidable even if they were signed prior to the law going into effect. However, prior cases that have been completed in arbitration cannot be reopened and relitigated in court.
This law also does not apply to other areas of the law where forced arbitration agreements are commonly used. For example, forced arbitration agreements are often used to protect employers from claims of violating statutes that commonly apply to workers, such as other forms or discrimination and harassment under Title VII of the Civil Rights Act, Americans with Disabilities Act, Family and Medical Leave Act, and Fair Labor Standards Act. But not all hope is lost with these other violations. The Biden administration and proponents of H.R. 4445 have suggested that other areas where forced arbitration agreements are commonly used could be next for reform. Biden admin signaled this explicitly in a letter on February 1st, 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.”
Thanks to H.R. 4445 victims of sexual harassment and assault will no longer be silenced or forced to give up their day in court and will be able to publicly hold perpetrators responsible. The bipartisan support for this bill also signals that this may soon also be the case for workers who are victims of other forms of workplace discrimination and wage theft, ending forced arbitration for all workers’ rights violations. Until then, this is a huge step towards putting an end to workplace sexual harassment and assault.
If you have been a victim of workplace sexual harassment or assault, please reach out to the expert employment attorneys at Outten & Golden.