Passing with a voice vote in the U.S. Senate on Feb. 10, landmark federal legislation that would ban forced arbitration for sexual harassment claims in the workplace is expected to be signed by President Joe Biden, who supported the bill.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act is groundbreaking because it empowers employees to pursue legal action, without interference, against employers for sexual harassment claims. Previously, employers could force employees into agreements, as a condition of employment, which compelled the employee to take sexual harassment claims against the employer into arbitration, where the employer tended to have more power.
As many as 60 million workers throughout the U.S. are under forced arbitration agreements, which protect an employer’s liability when violations of an employee’s rights occur. Importantly, this new law retroactively nullifies any existing arbitration agreement that covers sexual misconduct claims.
Arbitration Agreements in California
California lawmakers attempted to ban arbitration agreements outright in 2019 with AB 51. This law was met with a legal challenge by the U.S. Chamber of Commerce, leading to an injunction right before AB 51 was supposed to take effect on Jan. 1, 2020.
After the dispute worked its way up to the Ninth Circuit Court of Appeals, however, that court removed the injunction and ruled on Sept. 15, 2021, that employers could still offer arbitration agreements to job applicants and employees – just not as a mandatory condition of employment. This means that unless the Ninth Circuit’s decision is reversed by the U.S. Supreme Court, forced arbitration agreements altogether are banned in California.
Now, though, it appears that any voluntary arbitration agreement can’t cover claims involving sexual harassment and sexual assault. This means that California workers statewide can confidently take legal action against their employer when they experience sexual misconduct at work, whether or not they’re under an arbitration agreement.
If you think you need legal help to deal with sexual harassment at work, our attorneys at K2 Employment Law can help. Reach out to us today to schedule a free consultation to learn more about how we can help.