On February 7th, the U.S. House of Representatives passed H.R. 4445, known as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” or the “#MeToo Bill.” The Senate passed the Bill only a few days later on February 10, 2022, and President Biden is expected to sign H.R. 4445 any day. H.R. 4445 amends the Federal Arbitration Act, and nullifies mandatory arbitration agreements that would previously have waived an employee’s right to file suit for workplace sexual assault or harassment claims and class action claims. Notably, H.R. 4445 applies only to Title VII sexual assault and harassment claims. There is no prohibition as to the enforcement of mandatory arbitration agreements and class action waivers for gender and other types of discrimination.
Although H.R. 4445 will invalidate mandatory arbitration agreements for Title VII sexual assault or harassment claims, it will also limit the employee’s methods for pursuing those claims, and keep the details of such claims more private than in a traditional court proceeding. H.R. 4445 applies to all new claims made after the date of enactment, but does not cover disputes already in arbitration. However, if the parties entered into a mandatory arbitration agreement before H.R. 4445 was enacted, and the employee’s claim is not asserted until after H.R. 4445 was passed, then the new law will bar mandatory arbitration for sexual harassment and assault claims.
Because these types of arbitration provisions are so commonplace in employment contracts, H.R. 4445 will have an immediate impact on employment law. H.R. 4445 significantly erodes the utility of arbitration for sexual harassment or assault claims, as it precludes mandatory arbitration for these claims, although voluntary arbitration provisions will still be upheld. The enaction of this law will require employers to carefully reevaluate their class action waivers and mandatory arbitration agreements to ensure full compliance.
