On Tuesday, I warned you that your company’s arbitration agreements for sexual harassment claims might not survive February intact.
Folks, they may not make it to the Super Bowl.
On Monday night, the House voted 335-97 to pass the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. The Bill allows victims of sexual assault or sexual harassment to litigate their claims in court even if they signed an arbitration agreement.
Yesterday, the Senate passed the measure unanimously by a voice vote.
The Bill now heads to President Biden for him to sign it. And he will.
The law will take effect immediately once President Biden signs the Bill. A victim of sexual harassment or sexual assault can litigate any subsequent dispute or claim. However, any pending arbitrations will remain there. Plus, your arbitration agreements will still work for other types of employment claims, including claims of sex discrimination that don’t involve unwanted sexual advances, physical contact, comments, or quid pro quo claims. But you should revise them to remove references to sexual harassment and sexual assault claims.
As I noted in the last post, companies may not be able to avoid the bad publicity of a sexual harassment claim by going to arbitration. Still, there may be a way to prevent a potentially inflated jury verdict. Consider having your employees sign a jury trial waiver as a condition of employment. Here are some samples. But your mileage may vary — this would not work in New Jersey, for example. So, consult an employment attorney for help with these onboarding documents.
Also, with more companies having employees return to work, now is an excellent time to re-train managers and employees to avoid and report these types of claims. Those who do not perceive their employers as taking these matters seriously are the ones who help put my kids through college when I’m called upon to defend their claims.
Which I’ll be doing in court.