Insights

End to Forced Arbitration of Sexual Assault Claims
What This Means for Employers


In 2006, the social media tag “#MeToo” was coined by Tarana Burke, a survivor of sexual assault, as a way to help other girls and women of color who also survived sexual assault.

On March 3, 2022, President Joe Biden signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” (the Act). The Act, which had bipartisan support, invalidates pre-dispute arbitration agreements with respect to cases filed under federal, state or tribal law that prevent a party from filing a civil suit alleging a sexual assault or sexual harassment dispute.

This means that employees who were previously subject to mandatory arbitration agreements may now pursue their claims in court if they so choose. The legislation takes effect immediately, nullifying any existing pre-dispute arbitration agreement. However, if the dispute has already occurred, the resolution must still proceed through arbitration.

While this law has been celebrated by employee activist groups and others as long overdue, there are real-world implications that every employer should consider if and when faced with a sexual harassment civil suit going forward.

Let's take a look at six key points you should review in light of The Act.

In 2006, the social media tag “#MeToo” was coined by Tarana Burke, a survivor of sexual assault, as a way to help other girls and women of color who also survived sexual assault.

1. Insurance Coverage

Conduct reviews of existing employment practices liability insurance coverage to make sure you are adequately insured for large employment exposures. When doing so, consider factors such as the nature of the business you conduct, the industry within which you operate, your workforce and the states within which you operate, as some jurisdictions, i.e. California, traditionally produce higher jury verdicts.

2. Arbitration Agreements

The Act essentially levels the playing field in arbitration, allowing plaintiffs to select the path to a more equitable recovery commensurate to their believed anguish.

Review your process to ensure compliance with the new Act.

3. Anti-harassment Policies and Grievance Procedures

How effectively or ineffectively a claim is handled may make a case more or less defensible, and may ultimately reduce or increase liability and exposure.

4. Investigation and Documentation

Make sure all complaints are properly investigated and that the investigation is thoroughly documented.

5. Trainings

Review and update anti-harassment trainings for all employees, including supervisors and managers, if necessary.

6. Employee Understanding

Make sure there is a basic understanding of sexual harassment litigation and exposures, as outlined above.

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