On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445, here “EFASASH”). This law aims to address the issue of sexual harassment and assault in the workplace. This law provides victims with a voice and holds employers and perpetrators accountable for their actions. This article outlines the key points of the Federal EFASASH Act.
Key Points of the EFASASH Act
- Prohibits forced arbitration: The EFASASH Act prohibits employers from requiring employees to sign arbitration agreements as a condition of their employment. This means that victims of sexual harassment and assault will no longer be forced to resolve their claims through arbitration. Arbitration lacks any right of appeal and which can favor “repeat players” such as employers engaging in serial abuses of employee rights.
- Encourages transparency: The EFASASH Act requires employers to publicly disclose the number of sexual harassment and assault claims filed against them. This will help to hold employers accountable for creating a safe and respectful workplace for all employees.
- Provides a right to a jury trial: The EFASASH Act gives victims the right to a jury trial if they choose to pursue their claims in court. This will allow them to have their day in court and have their case heard by a jury.
- Strengthens protections for whistleblowers: The EFASASH Act strengthens protections for whistleblowers who report incidents of sexual harassment and assault in the workplace. This should encourage employees to come forward and report these incidents.
Uncertainty as to Retroactivity.
One area of uncertainty surrounding the EFASASH Act is whether it will be retroactive. The law applies to any dispute or claim of sexual assault or sexual harassment that arose or accrued on or after March 3, 2022. However, it remains somewhat unclear whether the law will in practice apply to claims that were filed before it went into effect. The language of the law does not specifically address this issue. This question will likely be decided by the courts.
Uncertainty as to Supreme Court Interpretation.
Another area of uncertainty is whether the Supreme Court will construe the EFASASH Act unfairly by parsing the language “relates to”, or by other construction. This is a concern because some view the current Supreme Court as having a history of ruling against individual employee rights in favor of employer and corporate interests. The EFASASH Act is designed to provide meaningful protections for victims of sexual harassment and assault, and it is essential that the Supreme Court upholds these protections and does not undermine them through narrow interpretation of the law.
Prior to EFASASH, California workers were already protected by AB51, which went into effect on January 1, 2020. AB51 prohibited employers from requiring employees to sign arbitration agreements as a condition of their employment, including agreements to arbitrate claims related to sexual harassment. EFASASH builds on these existing protections. EFASASH also shows a growing consensus between the some states (including California) and the US Congress about illegality of forcing individuals to arbitrate civil rights claims, including sexual harassment and assault.
By prohibiting forced arbitration, encouraging transparency, providing a right to a jury trial, and strengthening protections for whistleblowers, the EFASASH Act gives victims a voice and holds perpetrators accountable. We should all work to secure meaningful protections for victims and to help create a safer and more respectful workplace for all employees.