On February 7, the House overwhelmingly voted to advance H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. The bill would prevent employers from mandating arbitration or preventing class-action lawsuits within their employment contracts for any sexual assault or sexual harassment claims in the workplace.
The legislation would supersede pre-existing provisions related to arbitration and apply to any case brought via federal, state, or tribal laws. It would also transfer the authority to determine the enforceability of an employment agreement in sexual assault cases to the appropriate court rather than an arbitrator. The provisions would apply prospectively only, not retroactively, to:
- Disputes involving a nonconsensual sexual act or sexual contact;
- Unwelcome sexual advances;
- Unwanted physical contact that is sexual in nature, including assault;
- Unwanted sexual attention, including unwanted sexual comments and propositions for sexual activity;
- Conditioning professional, educational, consumer, health care or long-term care benefits on sexual activity; and
- Retaliation for rejecting unwanted sexual attention.
H.R. 4445 passed the House in a bipartisan 335-97 vote, with 222 Democrats and 113 Republicans voting yes. This gives the bill added momentum heading into the Senate, where it’s important to note that companion legislation, S. 2342, has ten Republican cosponsors. Ten is the magic number in the Senate because, with all 50 Democrats voting yes, the bill would achieve 60 votes. However, the absence of Sen. Ben Ray Lujan (D-NM) as he recovers from a stroke means that one more Republican yes is required.
Still, Senate Majority Leader Chuck Schumer (D-NY) indicated that the Senate would take the legislation up later this week. The White House also released a statement of support on February 1.
There is the potential that the Senate could amend the bill, with Sen. Joni Ernst (R-IA) seeking to incorporate portions of S. 3143, the Resolving Sexual Assault and Harassment Disputes Act of 2021, which would establish a set of criteria in which arbitration by employers for cases involving sexual harassment and assault would be permitted. If the Senate amends H.R. 4445, it would require another vote in the House before heading to President Biden’s desk.
If you have any questions about this legislation, please contact the Michael Best Strategies team.