Is It the End of Forced Arbitration?


You may have read our blog, “Can Your Employer Make You Sign an Arbitration Agreement?” Soon, the answer to that question may change – particularly for claims of sexual harassment and abuse.

What Is Forced Arbitration?

Many employers make their employees sign arbitration agreements as a condition of employment. Essentially, employees are required to sign away their Fifth Amendment rights to a trial by jury and handle any allegations of workplace misconduct in private arbitration proceedings led by company-appointed arbitrators.

This requirement is known as “forced arbitration,” and for years, perpetrators have used secretive arbitration proceedings to settle cases and silence victims of sexual harassment and assault while keeping the allegations against them from the public.

Forced arbitration heavily favors the employer, which makes it difficult for employees to protect themselves, especially against gender discrimination, sexual harassment, and assault.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

With the approval of President Joe Biden (who has already spoken out in favor of the bill), the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445) will make the practice illegal in cases of sexual assault and sexual harassment.

According to The New York Times:

The bill would for the first time ensure that victims of sexual harassment and assault have the option of suing their abusers in state, tribal or federal court, invalidating any contract that closed off the option — a common condition of employment at many companies.”

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 passed both the House and Senate with broad bipartisan support and was presented to the president on March 2, 2022. It will become law immediately after President Biden signs it.

Companies like Wells Fargo, Airbnb, Microsoft, Google, and Facebook have already removed some of their arbitration clauses.

Proponents of the bill call the end of forced arbitration “the most significant labor legislation of this century.”

Does Forced Arbitration Still Apply to Other Cases?

Yes. Notably, arbitration agreements may still apply to discrimination cases and other employee grievances.

Many employees sign away their constitutional rights in arbitration agreements without realizing it, as arbitration clauses often appear in the fine print of employment contracts or in the middle of lengthy employee handbooks. More than 60 million Americans are subject to forced arbitration clauses in the workplace.

Ending forced arbitration in cases of sexual harassment and assault is a huge step, but advocates want to see the end of forced arbitration in all cases, including those involving age or race.

Until the end of forced arbitration is complete, employees should read their employment contracts carefully and consider negotiating arbitration clauses.

Meanwhile, H.R. 4445 will make it easier for Donati Law, PLLC to help victims of sexual harassment and gender discrimination. Our team can also help employees navigate arbitration clauses and protect their rights inside and outside of arbitration whenever possible.

If your employer has engaged in wrongdoing, do not hesitate to put our experience on your side.

We have been serving clients like you for more than 35 years, and we can start helping you as soon as you call us at (901) 209-5500 or send us a message online.

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