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Sexual Harassment Accusers May Opt Out of Forced Arbitration

Narrowing the power of business to keep workplace disputes out of court, the newly enacted federal “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” enables employees to disregard otherwise mandatory arbitration and have judges and juries decide such claims.

The law applies only to arbitration agreements entered on or after March 3, 2022.

The Equal Employment Opportunity Commission (EEOC), responsible for federal protections against sex discrimination and harassment, endorses these expanded rights.

The agency’s Vice Chair Jocelyn Samuels stated, “Access to justice is critical for robust protection of civil rights. The Ending Forced Arbitration Act offers essential protection for workers who are subject to sexual assault or harassment and will significantly advance the promise of our nation’s anti-discrimination laws.”

As the EEOC put it, “[a]s the #MeToo movement brought to light, in the worst cases, secrecy can shield serial harassers from accountability and allow them to repeatedly abuse employees. Court decisions and orders make the identity of violators of the law and their conduct public, which can serve to influence behavior and deter sexual harassment and assault from occurring in the first place.

“Some of America’s most prominent employers have already voluntarily discontinued mandatory arbitration for sexual harassment claims, and several states have passed laws aimed at restricting mandatory arbitration of harassment claims.” California is among those states seeking such limitations on arbitration. See, The Right to Fight, Battle Continues Over Employer-Required Arbitration Agreements (September 24, 2021).

Take Aways: Employers should ensure their arbitration agreements now acknowledge worker options required by this act.  As the law is silent on the point, management may choose to revise  agreements to require an employee’s companion claims to sexual harassment – e.g., racial or national origin harassment – are still to be arbitrated.  For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

● California Prohibits Mandatory Employee Arbitration Agreements (December 18, 2019)
Employment Arbitration Agreements (December 12, 2014)

Tim Bowles
March 11, 2022

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