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February 16, 2022 Practice Points

Congress Passes Anti-Arbitration Act for Sexual Harassment Cases

This bill does not seek to regulate NDA’s, only pre-dispute arbitration agreements and waivers of joint proceedings.

By Mark Kantor

On February 7, 2022, the U.S. House of Representatives passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445) by a bipartisan vote of 335-97 vote, with 113 Republicans joining every House Democrat to pass the bill. All 97 “no” votes came from Republican members of the House. The bill will now proceed to the U.S. Senate, where an identical bill has been submitted as S.2342. The legislation provides that,

Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable 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.

Other provisions of the bill define a sexual harassment dispute, a sexual assault dispute and a joint-action waiver.

This bill does not seek to regulate non-disclosure agreements (NDA’s), only pre-dispute arbitration agreements and waivers of joint proceedings (e.g., class actions).

On February 10, 2022, the U.S. Senate passed the act by voice vote. The bill now heads to President Biden, who has stated he will sign the bill into law.

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

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