On Feb. 10, 2022, Congress passed H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the Act). The Act became effective immediately on March 3, 2022 when President Biden signed it into law. The Act amends the Federal Arbitration Act, 9 U.S.C. §1, et seq. (FAA), to empower persons alleging conduct constituting a “sexual harassment dispute” or a “sexual assault dispute” to make an “election” invalidating a pre-dispute agreement to arbitrate “with respect to a case” that “relates to” the dispute. The Act further empowers complainants to invalidate “pre-dispute joint action waivers” with respect to such “cases”. Thus, any pre-dispute waiver of the right to file a class or collective action in court will no longer preclude the filing of a case relating to sexual harassment or sexual assault.

Although the Act by its terms does not require employers to amend their arbitration policies or agreements, it will greatly impact how private sector employers resolve disputes with their workers. According to a 2018 report by the Economic Policy Institute, more than half of the non-union private sector workforce is subject to mandatory pre-dispute arbitration procedures. Alexander J.S. Colvin, The Growing Use of Mandatory Arbitration, Economic Policy Institute (April 18, 2018).

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