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December 16, 2021 Practice Points

Proposed Federal Statute on the Arbitration of Sexual Harassment Claims

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act has attracted a lot of support from both parties compared to other bills providing for restrictions on pre-dispute arbitration agreements and appears to have a fair chance of passing.

By Mark Kantor

After hearings on November 16, 2021, the House of Representatives Judiciary Committee is undertaking a “mark-up” of H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. The Judiciary Committee will consider amendments to the proposed legislation at the mark-up.

Chairman Jerrold Nadler (D-NY) of the Judiciary Committee has proposed an amendment to the bill in the nature of a substitute, addressing the role of class representatives as well as the person alleging harassment or assault. The proposed substitute legislation would, at the election of (1) the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute or (2) the named representative of a class or in a collective action alleging such conduct, prohibit validity or enforcement of any pre-dispute arbitration agreement or pre-dispute joint-action waiver with respect to a case “which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.” The terms “sexual assault dispute,” “sexual harassment dispute,” “pre-dispute arbitration agreement,” and “pre-dispute joint-action waiver” are defined in detail in the bill.

The original House bill (HR 4445) was co-sponsored by five Republican members among 18 co-sponsors. The companion Senate bill (S 2342) was co-sponsored by six Republican Senators among 17 co-sponsors.

Among the current crop of bills providing for restrictions on pre-dispute arbitration agreements, this legislation has attracted the most support from across the aisles and appears to have a fair chance of passing both chambers and then being signed by President Biden. 

Mark Kantor is a member of the College of Commercial Arbitrators in Washington, D.C. 

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