#MeToo2022: I’ll See You In Court, If I Want To – Congress Passes Ban on Mandatory Arbitration of Sexual Harassment and Assault Claims

10 February 2022 Labor & Employment Law Perspectives Blog
Author(s): Jessica Glatzer Mason Michael F. Ryan

In the wake of the #MeToo movement, several states, such as California, have taken steps to ban mandatory arbitration clauses that cover claims of sexual harassment and assault. However, such prohibitions have decidedly not been the norm across the U.S.

That all changed on Thursday, February 10, 2022, when the United States Senate voted to approve a bill that will invalidate and render unenforceable mandatory arbitration clauses nationally in cases “relating to sexual harassment disputes or sexual assault disputes.” The House of Representatives recently (on February 7, 2022) passed an identical version of the bill with significant bipartisan support. The bill is now only an expected signature—from President Biden—away from becoming law. Assuming its enactment, the bill will apply to “any dispute or claim that arises or accrues on or after the date of enactment,” meaning it will not retroactively apply to ongoing arbitrations, but will take immediate effect going forward.

Importantly, because victims of sexual assault or sexual harassment may not always view the confidentiality of arbitration as a bad thing, the bill gives the person alleging such conduct the option whether they want to invoke the arbitration clause or invoke the bill and proceed in court. This gives complainants—but not employers—more control over the forum in which their dispute is heard, and whether they want to keep their allegations private. The bill also clarifies that mandatory arbitration provisions are invalid and unenforceable not only for individual claims or allegations, but rather to any case related to a sexual assault or sexual harassment dispute. This means that employers with mandatory arbitration provisions may start to see claims of sexual harassment or sexual assault inserted into cases primarily concerning other protected categories or activities; in an attempt to invoke the protections of the bill and nullify a mandatory arbitration provision as to the entire case.

The bill further makes clear that disputes over whether the soon-to-be-enacted law applies (often referred to as the issue of arbitrability) must be decided by a court, not an arbitrator, even where the arbitration agreement attempts to delegate such authority to an arbitrator. Any disputes over arbitrability will also be governed by federal law.

While the bill text does not go so far as to invalidate a mandatory arbitration clause in any context just because it is written broadly enough to encompass a sexual assault dispute or sexual harassment dispute, employers should still review their mandatory arbitration clauses and consider revising them to carve out claims of sexual assault and sexual harassment, which soon would no longer be enforceable anyway, to minimize enforcement issues.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services