By Ashley Miskovsky
On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“Act”), which adds Chapter 4 as an amendment to the existing Federal Arbitration Act (“FAA”). The new federal law will allow individuals with claims of sexual harassment or assault to elect out of pre-dispute arbitration agreements or joint-action waivers within their employment contracts. Though the law took immediate effect, it only applies to conduct occurring on or after March 3, 2022. Now, though victims may still choose arbitration to preserve their privacy, they will also maintain the right to bring their claims in a court of law. Such actions may arise from Title VII, or may invoke state or tribal laws prohibiting sexual harassment and/or assault.
This widely popular Act received bipartisan support, following pressure from the #MeToo movement, which grabbed the world’s attention in 2017. The #MeToo movement “launched an important discussion regarding sexual harassment,” and has had an “’undeniable’ impact on the number of reported … sexual harassment claims.” The movement has not only inspired this new federal legislation, and thirty-two similarly-motivated state bills,but has also prompted several companies, such as Uber and Google, to voluntarily waive their mandatory arbitration clauses for sexual harassment claims. Though these changes were voluntary, they followed increased “employee dissatisfaction and social pressure.” Specifically, Uber incorporated such changes after being sued by over a dozen women for sexual harassment and sexual assault in May of 2018, and Google’s changes “follow[ed] a 20,000-employee walkout protesting the company’s handling of previous sexual misconduct allegations.”
Employers who did not follow suit may now need to reevaluate and amend their employment contracts following the enactment of the federal Act. The modification of enforcement provisions may be necessary to ensure that their arbitration provisions will not be voided in their entirety by individuals bringing sexual harassment or assault claims.Such amendments may include the addition of venue provisions or the modification of enforcement provisions. However, employers must be cognizant of local laws with respect to employment contract modifications, and “must ensure they are providing adequate consideration to form a valid contract.”
Though this Act greatly enhances protections for victims of sexual assault and harassment, the Act nevertheless leaves many questions left unanswered. One question that remains, because the Act doesn’t expressly include or exclude retaliation claims that arise “from the same set of facts as the sexual harassment claim,” is whether such claims may still be subject to forced arbitration. Also left unanswered is whether an employer may “obtain a valid jury trial waiver outside of an arbitration agreement governed by the FAA.” These questions may be litigated in court in the future, and ultimately may be answered differently across jurisdictions.
Though some effects of this new legislation are still unknown and there are still questions left to be answered, this Act undoubtedly will help to fix “a broken system that protects predators and corporations and will help to end the days of silencing survivors,” who have long hoped for this access to justice.
 Tyler Z. Bernstein & Gabriella R. Albright, UPDATE: President Biden Signs Bipartisan Bill to End Mandatory Arbitration of Sexual Harassment and Assault Claims in the Workplace, Nat’l L. Rev. (Mar. 4, 2022), https://www.natlawreview.com/article/update-president-biden-signs-bipartisan-bill-to-end-mandatory-arbitration-sexual.
 Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Pub. L. No. 117-90 (2021). A pre-dispute arbitration agreement is “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.” Id.
 Id. A pre-dispute joint action waiver is “an agreement… that would prohibit, or waiver the right of, one of the parties to the agreement to participate in a joint, class or collective action … concerning a dispute that has not yet arisen at the time of making the agreement.” Id.
 Bernstein & Albright, supra note 1.
 See Peter Blumberg, What Banning Forced Arbitration for Harassment Means: Quicktake, Bloomberg Law (Feb. 16, 2022), https://news.bloomberglaw.com/bloomberg-law-analysis/what-banning-forced-arbitration-for-harassment-means-quicktake?context=article-related.
 See Emily G. Massey, Dust Off Your Template Employment Agreements (Feb. 23, 2022), Ward & Smith, P.A., https://www.wardandsmith.com/articles/Mandatory-Arbitration-and-Class-Action-Waivers-for-Sexual-Harassment-or-Sexual-Assault-Prohibited-In-Any-Pre-Dispute-Agreement.
 See Bernstein & Albright, supra note 1.
 See Blumberg, supra note 5.
 Kathleen McCullough, Mandatory Arbitration and Sexual Harassment Claims: #MeToo- and Time’s Up-Inspired Action against the Federal Arbitration Act, 87 Fordham L. Rev. 2653, 2667 (2019).
 Id. at 2666-68.
 See id. at 2675-77.
 Id. at 2677.
 Id. at 2683-85.
 Id. at 2683-84.
 Id. at 2684.
 See Massey, supra note 6.
 See Lucy Bertino et al., Changes to Employment Arbitration Agreements Under the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment”: FAQs, JD Supra (Feb. 14, 2022), https://www.jdsupra.com/legalnews/changes-to-employment-arbitration-5827380/.
 Id.; see also Massey, supra note 6.
 See Bertino et al., supra note 17.
 Ali Zaslav & Jessica Dean, Senate passes sweeping overhaul of workplace sexual misconduct law, Cnn (Feb. 10, 2022), https://www.cnn.com/2022/02/10/politics/senate-vote-sexual-misconduct-law/index.html (quoting Senator Kirsten Gillibrand).