On March 3, 2022 President Biden signed the bipartisan Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“The Act”) into law. The Act amends the Federal Arbitration Act (FAA) to prohibit the mandatory arbitration of sexual harassment and sexual assault claims in arbitration agreements. The Act applies to all sexual harassment and sexual assault claims that arise or accrue on or after March 3, 2022. Thus, any claims that existed prior to March 3, 2022 can still be subjected to mandatory arbitration, but the mere presence of an arbitration agreement entered into before March 3, 2022 with a mandatory arbitration clause for such claims does not exempt the Act’s required changes. Consequently, any pre-dispute arbitration agreements for sexual assault and sexual harassment claims arising on or after March 3, 2022 are invalid and unenforceable. However, the victim of sexual assault or sexual harassment in these cases can still elect to arbitrate their claims.

Given these changes to the FAA, it is critical for employers to review their arbitration agreements and remove any language indicating sexual assault or harassment claims must be arbitrated. The existence of such provisions could invalidate the agreement in whole or in part. In addition to revising the arbitration agreement provisions in the employee handbook or collective bargaining agreement, employers should also tighten their procedures and requirements for investigating and reporting sexual harassment and assault to avoid liability. In terms of reporting procedures, employers should have clearly defined persons of contact for reporting. Such persons should include the employee’s immediate supervisor, in addition to another individual in case the alleged perpetrator is the employee’s immediate supervisor. Employers can also offer anonymous reporting hotlines or provide third parties to receive reports. Employer policies should also require prompt, thorough investigations of all sexual harassment and assault claims. Finally, employers should conduct regular training on sexual harassment and assault in the workplace, as well as require employees to routinely review and sign off on sexual harassment and assault policies.

The attorneys at Fishel Downey regularly advise employers on issues related to sexual assault and harassment in the workplace. If you have a specific question or scenario, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.