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The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 is a major step in ensuring that survivors of sexual harassment and assault can have their day in court, without being forced into secretive arbitration proceedings. The law’s broad bipartisan support in the Senate, as well as the remarks of President Biden, highlight the critical nature of this issue and the widespread recognition of the need for change.
Before the Act, arbitration agreements were often used as a tool by employers to avoid public scrutiny and potential legal liabilities arising from sexual harassment and assault claims. The Federal Arbitration Act (FAA) had long provided the backbone for the enforceability of these agreements, favoring arbitration and even superseding state laws that sought to limit it.
The passage of the Act significantly changes the landscape. It not only allows those alleging sexual harassment or assault to choose whether to enforce a predispute arbitration agreement but also empowers courts to make the determination on enforceability. This shifts the balance of power back to survivors and away from employers who may have previously used arbitration agreements to their advantage.
However, the Act is not without its complexities and potential limitations. Notably, it applies only to claims that arise after its enactment date. This means that incidents occurring before March 3, 2022, but reported afterward, could still be subject to forced arbitration under the previous guidelines. Such distinctions raise questions of fairness and underscore the need for survivors and their advocates to be acutely aware of the Act’s parameters.
The interpretation of “related claims” under the Act also presents challenges. The distinction between a claim directly alleging sexual harassment and one that is tangentially related but arises from the same set of facts is not clearly defined. The Johnson v. Everyman case provides some direction, suggesting a broader application of the Act to encompass entire cases if they contain allegations of sexual harassment. However, more cases and further judicial interpretations will be necessary to solidify this understanding.
In conclusion, while the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 marks a pivotal shift towards greater transparency and justice for survivors, its full implications and potential limitations remain to be seen. It will be crucial for legal professionals, advocates, and survivors to stay informed as the law continues to evolve in practice.
