MeToo's Landmark Yet Flawed Impact on Dispute Resolution in the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

Imre Szalai, #MeToo’s Landmark, Yet Flawed, Impact on Dispute Resolution: The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Northwestern Journal of Law and Social Policy, Forthcoming

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. In a nutshell, the Amendment generally invalidates predispute arbitration agreements in cases involving sexual harassment or sexual assault, and the Amendment thereby allows victims 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 have an impact on access to justice and shape how certain disputes are resolved.

While the goals of the Amendment are certainly laudable, the Amendment unfortunately suffers from several problems. Among other issues, the Amendment is poorly drafted, with at least three different interpretations concerning the scope of the Amendment, and it is uncertain whether the Amendment applies in the labor setting with collective bargaining agreements. The Amendment may also be unconstitutional as applied in certain settings involving state courts and state tort claims. The Amendment also raises several deeper questions about the regulation of arbitration and proper role of arbitration in society. This Article clarifies some of the confusion regarding the Amendment and suggests future reforms for arbitration law.

 

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