Earlier this month, a federal bill (H.R. 4445, also known as the Ending Forced Arbitration of Sexual Assault and Harassment Act of 2021, or “the Act”) that would prohibit mandatory arbitration of sexual assault and sexual harassment claims passed in both the House and the Senate. President Biden is expected to sign the bill as the President’s Office previously issued a statement in support. The Act, which was drafted as a direct response to the #MeToo movement and garnered bipartisan support, amends federal law to prohibit pre-dispute mandatory arbitration agreements for sexual assault and sexual harassment disputes.

Under the amended federal law, workers will still be able to opt for arbitration of sexual assault and sexual harassment disputes if that is the worker’s preference. The Act will apply retroactively, meaning that even mandatory arbitration clauses in employment contracts that have already been signed will be nullified. Arbitration is a form of private dispute resolution where a neutral third party (not a judge) makes a decision that is binding on both parties. Prior to the passage of this Act, employers could require employees to agree to arbitrate all sexual assault and sexual harassment disputes that may come up in the course of employment. Now, employees will be able to determine the best course of action for themselves.

Employers frequently mandate arbitration clauses as a cost saving measure because arbitration is significantly cheaper than litigation. But arbitration is not just cheaper for the employer – it is typically more affordable for the victim as well. Arbitration can also be completed more quickly than traditional litigation, which may benefit victims who do not wish to drag out the trauma of workplace assault or harassment over a period of many months or even years.

If arbitration is not necessarily bad for victims who have been harassed or assaulted at work, why is this good news for workers?

The #MeToo movement highlighted that mandatory arbitration clauses often prevent victims from coming forward. Most workers are unfamiliar with the arbitration process, which can be complicated depending on the employer’s contract language and the rules of the relevant arbitration association. Additionally, many workers are hesitant to go to Human Resources with sexual harassment and sexual assault complaints, particularly in instances where the victim fears retaliation or feels that the assault or harassment occurred due to action or inaction by their employer. Finally, some victims of sexual assault and sexual harassment want their day in court for personal reasons.

This Act is a positive step forward for victims of sexual assault and sexual harassment at work and represents a milestone achievement for the #MeToo movement. However, this tweak to federal employment law does nothing preventative to protect workers from harm in the first place. Many workers are completely unfamiliar with what constitutes unlawful sexual harassment. Most do not realize that sexual harassment, even by a co-worker, can constitute unlawful discrimination. Not only does this lack of education leave workers vulnerable to sexual harassment and discrimination at work, it also leaves employers exposed to liability under local, state, and federal anti-harassment and discrimination laws.
Responsible employers and organizations should adopt trainings, policies, and practices that aim to inform members at all levels on principles of diversity, equity, and inclusion. LCLG is skilled at facilitating customized trainings that not only help organizations and employers meet state and federal legal obligations, but also proactively respond to and prevent workplace issues related to sexual harassment and discrimination.

Employers and organizations may also contact LCLG about updating sexual harassment and discrimination policies to comply with the Act and better support best practices in the workplace.

For more information about LCLG’s workplace consulting and training services, please contact us.