Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

On March 3, 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445) (the “Act”) into law.  

 • The Act amends the Federal Arbitration Act (“FAA”) to prohibit employers from enforcing most arbitration agreements and class action waivers in connection with claims of sexual harassment or sexual assault. 

• Specifically, the Act makes any “pre-dispute arbitration agreement” voidable and unenforceable “at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute.” It also makes any “pre-dispute joint action waiver” voidable by the named representative in a class or collective action alleging such conduct. 

What is a pre-dispute arbitration agreement: 

A pre-dispute arbitration agreement is any accord to arbitrate a dispute that had not yet arisen at the time of the making of the agreement. 

What is a joint-action waiver agreement: 

A joint-action waiver is an agreement, whether or not part of a pre-dispute arbitration agreement, that would prohibit, or waive the right of, one of the parties to the agreement to participate in a joint, class, or collective action in a judicial, arbitral, administrative, or another forum, concerning a dispute that has not yet arisen at the time of the making of the agreement. 

These new provisions will apply to any sexual assault or sexual harassment claim – whether under federal, state, or tribal law – that arises after March 3, 2022, regardless of when the arbitration agreement or joint action waiver was signed. However, given that the Act prohibits only “predispute” mandatory arbitration agreements, it will not prevent enforcement of arbitration agreements executed after a sexual assault or sexual harassment dispute arises. 

•  The Act also does not prohibit arbitration of sexual assault or harassment claims if the claimant desires to proceed with arbitration. 

• This Act is a significant change in federal law. The U.S. Supreme Court and other courts applying the FAA have often found that arbitration agreements are valid and enforceable, including in the employment context. The Act effectively overturns that case law for sexual harassment and assault claims.