President Biden has signed H.R.4445, known as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021”, into law. The law amends the Federal Arbitration Act to state that, at the election of the person alleging conduct constituting sexual harassment or sexual assault, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver will be valid or enforceable with respect to such cases as filed under federal, tribal, or state law. The law further provides that any dispute as to the applicability of H.R.4445 will be determined under federal law and in court, rather than by an arbitrator, regardless of whether the arbitration agreement purports to delegate the authority for such decisions to an arbitrator.

The Act does not prevent employers from requiring arbitration of other types of disputes, nor are employees and employers prevented from voluntarily agreeing to arbitrate sexual harassment or sexual assault claims once the alleged events have taken place and the claims have been made.

In light of this important development, employers should consider revising the provisions of any arbitration agreement to comply with the new law.

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