President Biden has signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” which we previously discussed here. During the signing ceremony, President Biden celebrated the legislation, stating it was a “momentous day for justice and fairness in the workplace.”
What still remains to be seen is how this law will be interpreted and applied. Many commentators have questioned how lawsuits that include more than one claim – just one of which is sexual harassment or assault– will be treated under this law. Specifically, would such cases be divided by claim, and subject to arbitration and litigation simultaneously? And who decides how the case will proceed – the arbitrator or the court? Time will tell.
The U.S. Equal Employment Opportunity Commission (“EEOC”) has applauded the new law, stating that it expects more workplace sexual harassment claims to be investigated by the government, and then litigated against employers. The EEOC noted that in 2020, more than 6,500 private sector sexual harassment charges were filed with that Agency.
Given the EEOC’s outreach regarding this new law and wide media publicity, and the research showing that most workplace sexual harassment is not reported, we recommend that employers work with their counsel to update any employee arbitration and alternative dispute resolution agreements and policies to ensure compliance with the law. Ballard Spahr regularly works with its clients to update their policies and to take other preventative steps, such as training and prompt investigation of claims to avoid and address sexual harassment claims.