On March 3, 2022, President Biden, as expected, signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“Act”) into law. As we previously explained, the Act amends the Federal Arbitration Act (FAA) to make pre-dispute arbitration agreements for sexual assault and sexual harassment claims invalid and unenforceable. Parties remain free, however, to mutually agree to arbitration after a claim has been asserted. The new law delegates any disputes regarding the Act, including as to the arbitrability of claims, to the courts, and not an arbitrator, to decide.
A bill that will prohibit mandatory arbitration of sexual assault and sexual harassment claims is on its way from the House and Senate to President Biden for his signature. It appears likely that the President will sign the bill, given that a statement issued by the President’s Office earlier this month states that the “Administration supports” passage of the bill.
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