Forced Arbitration for Sexual Assault or Harassment Claims in the Workplace now Banned by Federal Law

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 passed on March 3rd of this year, effectively banning employers from enforcing pre-dispute arbitration agreements to handle claims of sexual assault and sexual harassment. In amending the Federal Arbitration Act (the “FAA”), the Federal ban on arbitration clauses extends to all claims of sexual assault or harassment, whether they arise under federal, state, local or tribal law. The specific language reads:

If the parties dispute whether the law applies to an employee’s claim, that issue must be decided by a court, not the arbitrator, regardless of what the written agreement provides. Importantly, the law does not ban employees from choosing to arbitrate claims for sexual assault and sexual harassment; it only applies to an employer’s forced use of arbitration. The new law prohibits mandatory arbitration to new sexual assault or harassment claims made on or after March 3, 2022, meaning, pre-existing filed claims may still be subject to a written arbitration mandate.