Arbitration of Sexual Assault and Sexual Harassment Claims is No Longer Permitted

March 7, 2022

By: Stephen B. Stern

     On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“Ending Forced Arbitration Act”).  The new law provides that “no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a[ny] case filed under Federal, Tribal, or State law and relates to [a] sexual assault dispute or [a] sexual harassment dispute.”  In other words, any arbitration agreement that prospectively requires a claim for sexual assault or sexual harassment be litigated in arbitration, as opposed to a federal or state court, shall be unenforceable.  The law also requires courts, not arbitrators, to determine the enforceability of any such agreement.  Notably, the new law applies only to disputes that arise or accrue on or after the date on which the law was enacted (i.e., March 3, 2022).  

     While the Ending Forced Arbitration Act now eliminates arbitration as a potential forum for businesses to address claims for sexual assault and sexual harassment, it does not preclude employers from continuing to apply arbitration agreements to other employment claims, if that is their preferred venue for addressing employment disputes.