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Mandatory Arbitration Banned for Sexual Harassment Claims

Tonya Fletcher SPHR, SHRM-SCP
by Tonya Fletcher SPHR, SHRM-SCP on February 14, 2022

With bipartisan support, Congress has passed legislation to eliminate the use of mandatory arbitration clauses in cases on sexual assault and sexual harassment. The House approved H.R. 4445 on February 7 and the Senate passed the measure on February 10. The legislation provides federal protection for employees’ right to sue their employers, nullifying clauses in employment contracts that force employees to use arbitration. President Biden is expected to sign the bill.

This legislation came about in response to the #MeToo movement as these agreements can restrict sexual harassment victims from speaking out. The legislation gives individuals a choice between going to court or going to arbitration to resolve allegations in cases related to sexual harassment or sexual assault. Some states, including California and New York, already ban mandatory arbitration of sexual harassment claims.

The EEOC says it is unlawful to harass a person because of that person’s sex. Harassment can include "sexual harassment" or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person's sex. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

Clients of FrankCrum can reach out for expert HR advice on sexual harassment situations.

Learn more here about how we can help you.

Tonya Fletcher SPHR, SHRM-SCP
Tonya Fletcher SPHR, SHRM-SCP

Tonya is the Labor Compliance Manager at FrankCrum. In this role, she leads the FrankAdvice team of HR consultants and manages the delivery and content of best practice HR information to client owners and managers. When she’s not at work, Tonya enjoys international travel.