President Biden signed into law “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (H.R. 4445) on March 3, 2022. It went into effect immediately. The Act will end forced arbitration for employee survivors of sexual assault and harassment and allow survivors to file lawsuits against perpetrators.
Under the new Act, employers will be prohibited from forcing employees to settle sexual assault and harassment claims through arbitration. Arbitration is a legal procedure in which a claim is resolved through a third-party arbitrator who makes a binding decision on the dispute. Such closed-door arbitration processes often favor the perpetrator and keep the incidents hidden from public knowledge.
Instead, employees now have the choice to file a lawsuit in court before a judge using their own legal representation, rather than through a third-party arbitrator. This is one of the most significant changes to this area of law in many years.
What Does This Act Change?
The passing of this Act is a major victory for employees and workers everywhere. Essentially, the Act amends the Federal Arbitration Act, making it easier for sexual assault and harassment survivors to file suit in court and not be forced to arbitration.
H.R. 4445 creates the following changes:
- Choice of Process: Prospective plaintiffs, not defendants, are the ones to choose whether to litigate the sexual assault or harassment claim in court or through arbitration. Forced arbitration for these matters is no longer allowed.
- Class Action Lawsuits: Sexual assault/harassment survivors can also choose to file suit either individually or through a class action suit. This right will apply regardless of whether the individual already signed an agreement waiving their right to a class action.
- Determination of Applicability: Whether or not H.R. 4445 applies to a given case will be decided by a federal judge under federal law, and not an arbitrator.
- Retroactive Application: Individuals also have the right to choose even if they previously signed an arbitration-only agreement beforehand. Any existing forced arbitration terms are now voidable. This is true even if the person signed the arbitration agreement before the Act becomes law. However, cases that have already been completed through forced arbitration can’t be re-opened for litigation in court.
- Scope: The Act doesn’t just apply in a workplace or employment context. It also applies to other people in other roles such as clients, consumers, patients, and customers. Many services like property leases and ridesharing apps often require consumers to sign a forced arbitration clause for sexual harassment or assault claims; this Act will cover those situations as well.
So, while H.R. 4445 is rather short and straightforward compared to other laws, it is potent. It creates many significant changes that broaden and strengthen legal protections for those who have experienced sexual assault or sexual harassment.
Such changes will change the landscape of sexual assault law, especially with regard to the way such claims are litigated in court. If you have any questions about the Act or need representation after an incident, contact our law firm at (619) 613-2959.
Frequently Asked Questions About Forced Arbitration
Can You Be Forced Into Arbitration?
Under the new law, employers can no longer force workers into arbitration as a means of resolving sexual assault or harassment claims. However, employees can still choose to go into arbitration if they so desire. This places the decision making more squarely in the hands of the survivor rather than the employer.
This is a crucial factor to consider for survivors who may not want to go to court for various reasons. The important part is that it’s up to the employee to choose what they are most comfortable with in terms of legal remedies and processes.
Several companies have already banned or are considering banning forced arbitration for sexual harassment, including Facebook, Lyft, Google, and Wells Fargo. If you are unsure of your rights or what the pros and cons of arbitration are, you should contact a sexual assault lawyer who can help clarify what’s ideal for you.
What Happens if You Refuse Arbitration?
In the past, refusing to sign a forced arbitration clause could have negative effects for an employee or candidate for employment. For instance, a person that refused arbitration often risked consequences like not being hired, losing a promotion, or missing out on further career opportunities.
The threat of such consequences has allowed instances of sexual assault or harassment to continue occurring, as they could be used as leverage to keep employees in a state of silence or fear.
The new bill aims to help to level the playing field for employees. It allows them to avoid being placed in positions where choosing to sign an agreement or not could affect their livelihood.
Under the new Act, individuals now have a choice regarding legal approaches to sexual misconduct claims.
How Does Forced Arbitration Affect the Average Employee?
In the U.S., nearly 60 million workers may be subject to forced arbitration every year. Forced arbitration typically favors corporate entities and creates disadvantages for plaintiffs. It often:
- Creates a lower likelihood of winning the legal dispute
- Prevents harmed individuals from banding together and forming a class action suit
- Shifts the legal fees to the injured parties
Lastly, and perhaps most importantly for broader sexual assault considerations, the issues of transparency and public disclosure are main concerns with forced arbitration agreements. While the results of arbitration aren’t automatically confidential, it’s usually easier for a company to keep the results and discussion from an arbitration secret compared to a public lawsuit.
The use of forced arbitration agreements has been one way that large corporations made sexual assault accusations “go away.” A confidential arbitration hearing often meant that the assaulter could quietly settle their way out of liability while continuing to assault more people.
However, now that companies and employers know that sexual assault allegations could result in a public lawsuit, they will be more likely to put measures in place to prevent misconduct from happening in the first place.
Part of the success of the #MeToo movement has been in bringing previously hidden issues into the light of public scrutiny. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 continues along those lines and helps increase overall awareness of both individual and systemic instances of sexual assault.
Contact a Sexual Assault Attorney Regarding Your Legal Rights
Under the new Act, individuals now have a choice in terms of legal approaches to sexual misconduct claims. The Act will also help to expose other conditions and situations where such heinous assaults can occur.
At The Pride Law Firm, we understand how important it is that individuals receive their full rights and options under the law. If you or a loved one were subject to sexual assault or harassment and have questions about your rights, contact us online or at (619) 613-2959.
We have helped countless survivors regain the dignity they feel they lost after an assault. Whether or not you have signed a forced arbitration agreement, we can provide you with the guidance you need in a safe, private, and confidential setting.