S.2342 - Ends Forced Arbitration of Sexual Assault and Sexual Harassment claims | Congress.gov | Library of Congress

Senator Kirsten Gillibrand with former

Fox News Anchor Gretchen Carlson

In S. 2342 Congress has opened a substantial breach in the wall erected by the United States Supreme Court blocking access to the courts by persons seeking redress for sexual harassment or assault.  The Supreme Court has routinely enforced arbitration clauses in contracts of employment and elsewhere.  The result has been that at their election employers can block access to the courts.  Neither federal law - under Title VII of the 1964 Civil Rights Act, nor state laws against discrimination have been available under the contracts of adhesion - take it or leave it terms set by contracts of employment or company rules.  Now Congress has amended the Federal Arbitration Act and imposed similar limits on state laws.

Now the Congress has opened the courthouse doors in a measure sponsored by New York Senator Kirsten Gillibrand.  She first introduced the bill in 2017 and on Friday stood victorious side by side with former Fox News Anchor Gretchen Carlson.  The one-time Miss America had successfully sued Fox News leader Roger Ailes.

Although the National Labor Relations Act protects "concerted activity" in Epic Systems - a 2018 wage and hours law case -the Supreme Court  allowed employers as a condition of employment - to bar lawsuits arising from sexual harassment or assault.  Compulsory arbitration deprives workers of a neutral judge, trial by jury, the benefit of court-ordered discovery, and public justice.  Writing for the Court Neil Gorsuch asked

Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?

His answer was:

“companies may require workers to settle employment disputes through individual arbitration rather than joining to press their complaints, a decision affecting as many as 25 million workers”

But Ruth Ginsburg, dissenting wrote:

    T]he edict that employees with wage and hours claims may seek relief only one-by-one does not come from Congress. It is the result of take-it-or-leave-it labor contracts harking back to the type called “yellow dog,” and of the readiness of this Court to enforce those unbargained-for agreements. 

Though Epic Systems itself is largely untouched its embrace of "choice"  will no longer apply to sexual harassment claims.  In a major victory for employees they will no longer be forced to "consent" to arbitration of sexual harassment or assault cases.  Even courts that have sought to preserve the right to go to court have sometimes failed.  Thus in Skuse v. Pfizer a divided New Jersey Supreme Court in 2020 voted to enforce a mandatory arbitration clause compelled post-employment by the drug giant Pfizer, Inc..

- GWC 

Text - S.2342 - 117th Congress (2021-2022): Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 | Congress.gov | Library of Congress

9  U.S.C. § 401. Definitions

“In this chapter:

“(1) PREDISPUTE ARBITRATION AGREEMENT.—The term ‘predispute arbitration agreement’ means any agreement to arbitrate a dispute that has not yet arisen at the time of the making of the agreement.

“(2) PREDISPUTE JOINT-ACTION WAIVER.—The term ‘predispute joint-action waiver’ means an agreement, whether or not part of a predispute arbitration agreement, that would prohibit, or waive the right of, one of the parties to the agreement to participate in a joint, class, or collective action in a judicial, arbitral, administrative, or other forum, concerning a dispute that has not yet arisen at the time of the making of the agreement.

“(3) SEXUAL ASSAULT DISPUTE.—The term ‘sexual assault dispute’ means a dispute involving a nonconsensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18 or similar applicable Tribal or State law, including when the victim lacks capacity to consent.

“(4) SEXUAL HARASSMENT DISPUTE.—The term ‘sexual harassment dispute’ means a dispute relating to any of the following conduct directed at an individual or a group of individuals:

“(A) Unwelcome sexual advances.

“(B) Unwanted physical contact that is sexual in nature, including assault.

“(C) Unwanted sexual attention, including unwanted sexual comments and propositions for sexual activity.

“(D) Conditioning professional, educational, consumer, health care, or long-term care benefits on sexual activity.

“(E) Retaliation for rejecting unwanted sexual attention.

“§ 402. No validity or enforceability

“(a) In General.—Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual assault dispute or sexual harassment dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

“(b) Determination Of Applicability.—An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an agreement to which this chapter applies shall be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement, and irrespective of whether the agreement purports to delegate such determinations to an arbitrator.”.