On February 7, 2022, in a 335-97 vote, the U.S. House of Representatives passed a bipartisan bill (“Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act”), which would prohibit “mandatory arbitration” in sexual assault and harassment cases arising or accruing on or after the date of enactment.  This bill also invalidates joint, class, or collective action waivers pertaining to sexual assault and harassment claims.  If signed into law, employers will have to remove these clauses from their arbitration and/or employment agreements and, if a claim arises, litigate these types of cases before a jury in state or federal court.

The bill was first introduced in light of the #MeToo movement.  Many Republican lawmakers initially opposed the bill as it also included discrimination cases.  The bill’s language has since been changed to focus exclusively on cases involving sexual assault and harassment.

Supporters of the bill believe that, if enacted, it will allow victim of harassment or assault to speak publicly (as opposed to litigating their case in a confidential and purportedly biased arbitration) while its opponents believe the bill to be overly broad and improper federal interference into the workplace.

Many large companies, such as Wells Fargo, have already removed binding arbitration clauses pertaining to sexual assault and harassment claims.

Apparently absent from the bill is any attempt to address the issue of “runaway” juries that have recently awarded individual plaintiffs $137 million (against Tesla) and $155 million (against Farmers Insurance) in employment harassment and discrimination cases in California, for example.  Some of the supporters of this bill might consider offering an amendment to address that issue as they debate this bill.

The bill is expected to go to the Senate shortly, and Senate Majority Leader Chuck Schumer (D., N.Y.) anticipates there to be strong bipartisan support of the bill, which is also apparently backed by President Biden.

UPDATE: On February 11, 2022, the Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act by a voice vote.  Please see our latest post for further information.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.

Photo of Ariel Brotman Ariel Brotman

Ariel Brotman is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She represents employers in all aspects of employment litigation, including wage and hour, wrongful termination, discrimination, harassment, retaliation, whistleblower, trade secrets, and…

Ariel Brotman is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She represents employers in all aspects of employment litigation, including wage and hour, wrongful termination, discrimination, harassment, retaliation, whistleblower, trade secrets, and breach of contract litigation, in both the single-plaintiff and class-action context. She also counsels employers on a diverse range of workplace issues.

Ariel earned her J.D. from USC Gould School of Law, where she was a member of the Southern California Interdisciplinary Law Journal. During law school, she was also a clinical student in the University of Southern California Immigration Clinic. In addition, she served as a judicial extern to the Honorable Robert N. Kwan in the United States Bankruptcy Court, Central District of California.