The Federal Arbitration Act (“FAA”) has been around for decades, but one of the consequences of the #MeToo movement has been a widespread recognition that allowing employers to force survivors of sexual assault and harassment into arbitration is a real problem. Not only do arbitration agreements serve to silence survivors, but they also permit employers to sweep allegations of wrongdoing under the rug, while allowing pervasive toxic work environments to escape public scrutiny. For example, G&E Principal, Kimberly Evans, recently argued before the Ninth Circuit Court of Appeals in support of reversing a district court’s decision to compel arbitration in a sexual assault case. In that case, the plaintiff/employee was forced to sign an arbitration agreement after she reported to the company that her boss had sexually assaulted her and after the company was supposed to be investigating the incident. In effect, this employer was permitted to retroactively pen an arbitration agreement to address sexual assault claims that it already knew about in an effort to keep this survivor from pursuing her case in court. This is exactly the type of conduct that the newly-introduced legislation before Congress is designed to change. In July 2021, U.S. Representatives Pramila Jayapal, Cheri Bustos, and Morgan Griffith joined U.S. Senators Kirsten Gillibrand, Lindsey Graham, and Dick Durbin in announcing bipartisan and bicameral legislation, “The Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act.” The Act, which is backed by former Fox News anchor Gretchen Carlson and endorsed by organizations such as the American Association for Justice (AAJ), Public Citizen, the National Women’s Law Center, and the National Partnership for Women and Families, would invalidate forced arbitration clauses that prevent sexual assault and harassment survivors from seeking justice through the courts. While it would only apply to disputes or claims arising on or after the effective date, if passed, this legislation would present a huge step forward in supporting and protecting survivors of assault and harassment, allowing survivors to have their day in court, and preventing employers from hiding bad behavior behind closed arbitration doors.

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