#MeToo’s Landmark, Yet Flawed, Impact on Dispute Resolution: The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021
On March 3, 2022, President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the Amendment) into law. This Amendment is the most significant change in the last several decades to the Federal Arbitration Act (the FAA), the main federal law governing arbitration since 1925. This landmark Amendment is also the most important federal legislation to arise thus far from the #MeToo movement. The Amendment invalidates predispute arbitration agreements in cases involving sexual harassment or sexual assault, thereby allowing survivors to proceed with their claims in public court with more robust procedural protections. With hundreds of millions of arbitration agreements in place covering consumers and workers, the Amendment can impact access to justice and shape how disputes are resolved. While the goals of the Amendment are laudable, the Amendment suffers from several problems, including poor drafting that leads to at least three different interpretations of its scope. These ambiguities particularly arise when a survivor asserts a sexual harassment claim in addition to other types of claims. Furthermore, it is uncertain whether the Amendment applies in a labor setting with a collective bargaining agreement. The Amendment may also be unconstitutional as applied in certain settings involving state courts and state tort claims. Additionally, the Amendment raises deeper questions about the regulation of arbitration and proper role of arbitration in society. This Article clarifies some of the confusion regarding the Amendment by proposing a particular interpretation of the Amendment’s scope: the Amendment should be construed to cover all claims that have a nexus with a sexual assault or sexual harassment claim. The justifications for the Amendment also suggest that future reforms of arbitration law should address discrimination and other forms of harassment.