A bill that will prohibit mandatory arbitration of sexual assault and sexual harassment claims is on its way from the House and Senate to President Biden for his signature. It appears likely that the President will sign the bill, given that a statement issued by the President’s Office earlier this month states that the “Administration supports” passage of the bill.
The bill, which is known as H.R. 4445 – Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“Act”), amends federal law by prohibiting pre-dispute mandatory arbitration agreements for sexual assault and sexual harassment disputes. It was approved by the House of Representatives with a bipartisan 335-97 vote on Monday, February 7. Senate approval followed quickly with a voice vote on February 10, 2022, sending the measure to the President for his signature.
The Act is silent about whether the date of execution of an arbitration agreement would determine whether a sexual assault or sexual harassment claim would proceed to arbitration or to court. Rather, the Act focuses on when a dispute or claim arises or accrues. Once enacted, as expected, the Act will apply to a sexual assault or sexual harassment “dispute or claim that arises on or after the date of enactment of [the] Act.” Given that the application of the Act will, in part, be determined by when the dispute or claim arises, employers should evaluate their arbitration agreements and consult with their counsel if and when the Act goes into effect.