Permissibility of Arbitration of Sexual Harassment and Sexual Assault Cases

Instructions:

Please read the law below and answer the following questions:

• May a person who signed an agreement to arbitrate all claims against their employer bring sexual abuse and sexual harassmentclaims in court or is the person required to arbitrate those claims? How do weknow?
• Does (1) a court or (2) an arbitrator decide whether the statute applies to bar the enforcement ofcontract provisions that require disputes be brought in arbitration?How do we know?
• What if someone who signed a contract requiring all sexual harassment claims to be broughtin arbitration files a sexual harassment action in court today asserting that he or she wassexually harassed on March 1, 2022. Would the statute protect that person and permit thecourt to hear the dispute?How do we know?
• What if someone who signed a contract requiring all disputes with their employer to beresolved in arbitration claims that they were discriminated based on their race or religion?Would the statute protect that person and permit the court to hearthe dispute?How do weknow?

PublicLaw117-90 117th Congress

AnAct

Mar.3,2022

[H.R. 4445]

Ending Forced Arbitration of SexualAssault and Sexual HarassmentActof 2021.

9USC1 note.

Toamendtitle9oftheUnitedStatesCodewithrespecttoarbitrationofdisputes involving sexual assault and sexual harassment.

BeitenactedbytheSenateandHouseofRepresentativesof the United States of America in Congress assembled,

SECTION1.SHORTTITLE.

ThisActmaybecitedasthe''EndingForcedArbitrationof Sexual Assault and Sexual Harassment Act of 2021''.

SEC.2.PREDISPUTEARBITRATIONOFDISPUTESINVOLVINGSEXUAL ASSAULT AND SEXUAL HARASSMENT.

1. INGENERAL.Title 9 of the United States Code is amended by adding at the end the following:

''CHAPTER 4ARBITRATION OF DISPUTES INVOLVING SEXUAL ASSAULT AND SEXUAL HARASSMENT

'401.Definitions

''Inthis chapter:

''(1) PREDISPUTE ARBITRATION AGREEMENT.The term

'predispute arbitration agreement' means any agreement to arbitrateadisputethathadnotyetarisenatthetimeof the making of the agreement.

''(2) PREDISPUTE JOINT-ACTION WAIVER.The term

'predispute joint-action waiver' means an agreement, whetheror not part of a predispute arbitration agreement, that would prohibit, or waive the right of, one of the parties to the agree- menttoparticipateinajoint,class,orcollectiveactionin ajudicial,arbitral,administrative,orotherforum,concerning adisputethathasnotyetarisenatthetimeofthemaking of the agreement.

''(3) SEXUAL ASSAULT DISPUTE.The term 'sexual assault dispute'meansadisputeinvolvinganonconsensualsexual actorsexualcontact,assuchtermsaredefinedinsection 2246 of title 18 or similar applicable Tribal or State law, including when the victim lacks capacity to consent.

''(4) SEXUAL HARASSMENT DISPUTE.The term 'sexual

harassmentdispute'meansadisputerelatingtoconductthat is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.

402.Novalidityorenforceability

''(a) INGENERAL.Notwithstanding any other provision of this title,attheelectionofthepersonallegingconductconstitutinga sexual harassment dispute or sexual assault dispute, or thenamed representative of a class or in a collective action allegingsuch conduct, no predispute arbitration agreement or predispute joint-actionwaivershallbevalidorenforceablewithrespecttoacasewhichisfiledunderFederal,Tribal,orStatelawand relates to the sexual assault dispute or the sexual harassment dispute.

''(b) DETERMINATION OFAPPLICABILITY.An issue as to whether this chapter applies with respect to a dispute shall be determined underFederallaw.Theapplicabilityofthischaptertoanagreement toarbitrateandthevalidityandenforceabilityofanagreement to which this chapter applies shall be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agree- ment, and irrespective of whether the agreement purports to dele- gate such determinations to an arbitrator.''.

SEC.3.APPLICABILITY.

This Act, and the amendments made by this Act, shall apply withrespecttoanydisputeorclaimthatarisesoraccrueson or after the date of enactment of this Act.

ApprovedMarch3,2022.