On February 10, 2022, senators observed that “[i]t has become increasingly clear that forced arbitration clauses have enabled sexual abusers to escape scrutiny while their victims are compelled to stay silent.” This is because “[f]orced arbitration clauses not only deny survivors their right to a day in court, they also conceal their allegations from public view,” “which is a green light for abusers to continue harming and harassing victims.” Recognizing this wrong and that “[s]urvivors deserve accountability,” the United States Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.
The Act amends the Federal Arbitration Act to permit claimants alleging sexual assault or harassment to elect out of otherwise binding arbitration provisions from pre-suit agreements. The Act gives the claimant discretion regarding arbitration—the individual could still proceed to arbitration if they so desired, but it is their choice notwithstanding previous contractual obligations. The Act also permits claimants to form a class or collective action for the same alleged misconduct even if they already contracted that right away as well.
The United States House of Representatives had already passed the Act on February 7, 2022. At this time, President Biden has not yet signed the legislation, although sources indicate he will.