In a significant win for the #MeToo movement, the U.S. Senate passed a bill on Thursday, February 10, 2021, which ensures that employees who are sexually harassed or assaulted in the workplace can pursue their claims in court. The bill invalidates pre-dispute agreements that require individuals to arbitrate claims related to sexual harassment or sexual assault.
The bill, which was passed with bi-partisan support and is expected to be signed by President Biden, is the result of public pressure to allow victims of sexual harassment and assault to have their day in court and publicly discuss their allegations rather than being forced to have their claims heard behind closed doors in confidential arbitration proceedings.
Notably, the bill applies both prospectively and retroactively, voiding existing agreements or mandatory arbitration clauses that apply to sexual assault and sexual harassment claims. The bill does not impact arbitration rules or bar arbitration of these types of claims entirely. Rather, it gives employees the choice to pursue their claims in court, rather than arbitration, and it preserves their right to make that choice after a claim has arisen.
Given the frequency with which mandatory arbitration clauses are included in employment-related agreements, this legislation will likely result in a significant uptick in workplace sexual harassment and assault cases filed in state and federal court. It will also result in a public airing of cases involving high profile alleged harassers who have previously been able to shield claims against them from public scrutiny in private arbitration.
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