The Ending Forced Arbitration of Sexual Assault and Sexual Harassment (“EFA”) Act was passed this month by both the U.S. House of Representatives and the U.S. Senate. Currently, the bill is awaiting President Biden’s signature. Since he has expressed his support for the Act, he will most certainly sign it into law. The EFA Act amends the Federal Arbitration Act. It effectively prevents employers from requiring that employees arbitrate sexual assault or sexual harassment disputes against employers. The EFA Act applies to individual employee sexual assault or harassment disputes as well as those involving multiple employees, a class or a collective.
Definitions of Sexual Harassment and Sexual Assault in the EFA Act
According to the EFA Act, a sexual assault dispute means a dispute involving a nonconsensual sexual act or sexual contact, including when the victim lacks capacity to consent. A sexual harassment dispute is defined as relating to conduct that constitutes sexual harassment under state or federal law. A court, not an arbitrator, must determine whether a dispute constitutes a sexual harassment dispute or a sexual assault dispute. This applies even if the arbitration agreement specifically states that an arbitrator may determine whether a dispute constitutes a sexual assault or sexual harassment dispute.
The EFA Act is Not Retroactive
The EFA Act specifically states that it “shall apply with respect to any dispute or claim that arises on or after the date of enactment of this Act.” It appears that the EFA Act will not be applicable to those disputes or claims that arose before the date of the enactment of the Act. However, it is likely that an employer that has an arbitration agreement which was in effect prior to the EFA Act’s enactment date cannot require employees to arbitrate sexual assault or sexual harassment claims that arise after the EFA Act’s enactment date.
What Steps Should Employers Take Now?
Employers should examine their current arbitration agreements to determine whether they need to be revised in light of the EFA Act. Employer arbitration agreements may need to be revised to include language that carves out an exception to their requirement that all employment law claims must be arbitrated. That language should make clear that sexual abuse and sexual harassment employment disputes are not required to be arbitrated under the agreement.
TAKEAWAY: Employers should take note of the prohibition against requiring arbitration for sexual harassment and sexual abuse claims and review their arbitration agreements according. If you need help reviewing an employer arbitration agreement or regarding any other federal or New Jersey employment law, contact Stephanie Gironda or any member of the Wilentz Employment Law Team.
The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services. Although we attempt to ensure that the postings are complete, accurate, and current as of the time of publication, we assume no responsibility for their completeness, accuracy, or timeliness. The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel.
This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk. We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability. Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein. We will remove a link to any site from this blog upon request of the linked entity.
We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.
If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at www.wilentz.com. One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.