[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3143 Introduced in Senate (IS)]

<DOC>






117th CONGRESS
  1st Session
                                S. 3143

To amend title 9 of the United States Code to prohibit the enforcement 
 of predispute arbitration agreements with respect to claims of sexual 
  assault and to ensure that fair procedures are used in arbitrations 
                  involving sexual harassment claims.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            November 2, 2021

   Ms. Ernst introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To amend title 9 of the United States Code to prohibit the enforcement 
 of predispute arbitration agreements with respect to claims of sexual 
  assault and to ensure that fair procedures are used in arbitrations 
                  involving sexual harassment claims.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Resolving Sexual Assault and 
Harassment Disputes Act of 2021''.

SEC. 2. ARBITRATION OF SEXUAL ASSAULT AND SEXUAL HARASSMENT CLAIMS.

    (a) In General.--Title 9 of the United States Code is amended by 
adding at the end the following:

     ``CHAPTER 4--ARBITRATION OF SEXUAL ASSAULT CLAIMS; RIGHTS IN 
                ARBITRATION OF SEXUAL HARASSMENT CLAIMS

``SEC. 401. DEFINITIONS.

    ``In this chapter--
            ``(1) the term `predispute arbitration agreement' means any 
        agreement to arbitrate a claim that had not yet arisen at the 
        time of the making of the agreement;
            ``(2) the term `sexual assault' means a nonconsensual 
        sexual act or sexual contact (as those terms are defined in 
        section 2246 of title 18, or similar applicable State or Tribal 
        law) perpetrated against an employee, including when the victim 
        lacks capacity to consent;
            ``(3) the term `sexual assault claim' means a claim or 
        dispute by an employee alleging that he or she was the victim 
        of a sexual assault, based on alleged conduct that meets the 
        definition of a sexual assault, brought by the employee against 
        the employer, the employer and one or more employees, or one or 
        more employees;
            ``(4) the term `sexual harassment' means--
                    ``(A)(i) an unwelcome sexual advance;
                    ``(ii) a request for a sexual favor;
                    ``(iii) an offensive remark about a person's sex; 
                or
                    ``(iv) any other verbal or physical harassment of a 
                sexual nature; and
                    ``(B) that is so frequent or severe that it creates 
                a hostile or offensive work environment or results in 
                an adverse employment decision; and
            ``(5) the term `sexual harassment claim' means a claim or 
        dispute between an employee and employer, or among an employee, 
        employer, and one or more employees, arising out of allegations 
        of conduct that constitutes sexual harassment but does not fall 
        within the definition of a sexual assault claim.

``SEC. 402. LIMIT ON VALIDITY AND ENFORCEABILITY.

    ``(a) In General.--Notwithstanding any other provision of this 
title, a predispute arbitration agreement shall have no force or effect 
with respect to a sexual assault claim.
    ``(b) Other Claims.--All claims other than those subject to 
subsection (a) shall be subject to the provisions of this title, 
provided that, for sexual harassment claims, section 403 is satisfied.

``SEC. 403. RIGHTS IN ARBITRATION OF SEXUAL HARASSMENT CLAIM.

    ``(a) In General.--Notwithstanding any other provision of this 
title, a predispute arbitration agreement to which this chapter applies 
shall be valid or enforceable with respect to a sexual harassment claim 
if the predispute arbitration agreement--
            ``(1) allows a party to discuss publicly the claim to be 
        arbitrated, unless both parties mutually agree otherwise after 
        the claim has arisen, and subject to reasonable restrictions 
        necessary to safeguard the privacy interests of third parties;
            ``(2) allows a party to report alleged violations of law to 
        local, State, and Federal civil and criminal law enforcement 
        authorities;
            ``(3) allows a party to discuss publicly the arbitrator's 
        decision, unless the parties mutually agree otherwise after the 
        claim has arisen;
            ``(4) allows the arbitrator to grant a party's reasonable 
        request to engage in third-party discovery, including the 
        ability to solicit evidence from other individuals or entities 
        not parties to the arbitration;
            ``(5) allows a party to be represented by a lawyer in the 
        arbitration proceeding;
            ``(6) provides for the appointment of an arbitrator who is 
        impartial and obligated to disclose any bias, personal or 
        financial interest in the arbitration, and past or present 
        relationships with the parties or their representatives;
            ``(7) provides for the ability of the parties to receive a 
        reasoned, written decision by the arbitrator;
            ``(8) if the agreement provides for a statute of 
        limitations it is no shorter than the statute of limitations 
        under the law applicable to the claim;
            ``(9) allows the claimant to recover individualized damages 
        and other individualized relief authorized by the law 
        applicable to the claim;
            ``(10) does not require the claimant to pay attorneys' fees 
        or expenses not authorized by the law applicable to the claim; 
        and
            ``(11) does not require the claimant to pay arbitration 
        fees greater than the filing fee for an action in Federal 
        district court established by section 1914 of title 28, unless 
        the arbitrator finds that the claimant's claims are frivolous 
        or brought for an improper purpose (as measured by the 
        standards of Federal Rule of Civil Procedure 11(b)) or the 
        claimant's litigation conduct is vexatious (as measured by the 
        standards of section 1927 of title 28).
    ``(b) Considerations.--In determining whether an arbitration 
agreement satisfies the standard set forth in subsection (a)(4), a 
court shall consider--
            ``(1) a claimant's ability to obtain relevant evidence;
            ``(2) privacy interests of the claimant and third parties; 
        and
            ``(3) whether the potential burdens that third-party 
        discovery might impose are proportionate to the needs of the 
        case.
    ``(c) Rule of Construction.--A predispute arbitration agreement 
complies with subsection (a) if the agreement does not prohibit the 
conduct, the agreement affirmatively permits the conduct, or the rules 
of the arbitral forum selected in the agreement satisfy the 
requirement.

``SEC. 404. ATTORNEYS' FEES FOR SEXUAL ASSAULT AND HARASSMENT CLAIMS.

    ``(a) Fee Distribution Timing.--If the plaintiff in a civil action 
or arbitration proceeding is seeking monetary relief with respect to a 
sexual assault claim or a sexual harassment claim, there shall be a 
final determination, including exhaustion of appeals, of any monetary 
relief to be paid to the plaintiff, and payment to the plaintiff, 
before the determination or payment of costs or attorneys' fees to the 
attorney for the plaintiff.
    ``(b) Fee Determinations Based on Monetary Relief.--Unless 
otherwise specified by Federal statute, if a judgment or settlement 
agreement in a civil action or arbitration proceeding provides monetary 
relief to the plaintiff with respect to a sexual assault claim or a 
sexual harassment claim, the portion of any attorneys' fees paid to the 
attorney for the plaintiff that is attributable to the monetary relief 
with respect to that claim--
            ``(1) shall not exceed a reasonable percentage of the 
        amount of monetary relief directly distributed to and received 
        by the plaintiff with respect to the claim; and
            ``(2) in any event, shall not exceed the total amount of 
        monetary relief directly distributed to and received by the 
        plaintiff with respect to the claim.
    ``(c) Fee Determinations Based on Equitable Relief.--Unless 
otherwise specified by Federal statute, if a judgment or settlement 
agreement in a civil action or arbitration proceeding provides for 
equitable relief with respect to a sexual assault claim or a sexual 
harassment claim, the portion of any attorneys' fees paid to the 
attorney for the plaintiff that is attributable to the equitable relief 
with respect to the claim shall not exceed a reasonable percentage of 
the value of the equitable relief, including any injunctive relief.

``SEC. 405. STUDY.

    ``Two years after the date of enactment of this chapter, the 
Comptroller General of the United States shall conduct a study of, and 
shall provide a report to the relevant congressional committees, 
including the Committee on the Judiciary of the Senate and the 
Committee on the Judiciary of the House of Representatives, the use of 
arbitration agreements in connection with this chapter. The study shall 
examine the total number of claims, the length of time to resolve a 
claim, party success rates, awards and settlement amounts, attorney's 
fees, and the validity of arbitration clauses challenged according to 
section 406. The study shall examine both arbitration proceedings and 
settlement agreements, to the extent possible, pursuant to this chapter 
and compare the outcomes, the duration, and award and settlement 
amounts with other employment cases in the judicial system.

``SEC. 406. APPLICABILITY.

    ``An issue as to whether this chapter applies with respect to a 
sexual assault claim or a sexual harassment claim shall be determined 
under Federal law. The applicability of this chapter to a predispute 
agreement to arbitrate such claims and the validity and enforceability 
of a predispute agreement to which this chapter applies shall be 
determined by a court, rather than an arbitrator, irrespective of 
whether the party resisting arbitration challenges the predispute 
arbitration agreement specifically or in conjunction with other terms 
of the contract containing such agreement, and irrespective of whether 
the agreement purports to delegate such determinations to an 
arbitrator. In the instance when a court finds a predispute arbitration 
agreement invalid in accordance with this chapter, the employee or 
employees shall be awarded a reasonable attorney's fee, including 
litigation expenses, and costs for challenging the predispute 
arbitration agreement.''.
    (b) Technical and Conforming Amendments.--
            (1) In general.--Title 9 of the United States Code is 
        amended--
                    (A) in section 2, by inserting ``or as otherwise 
                provided in chapter 4'' before the period at the end;
                    (B) in section 208--
                            (i) in the section heading, by striking 
                        ``CHAPTER 1; RESIDUAL APPLICATION'' and 
                        inserting ``APPLICATION''; and
                            (ii) by adding at the end the following: 
                        ``This chapter applies to the extent that this 
                        chapter is not in conflict with chapter 4.''; 
                        and
                    (C) in section 307--
                            (i) in the section heading, by striking 
                        ``CHAPTER 1; RESIDUAL APPLICATION'' and 
                        inserting ``APPLICATION''; and
                            (ii) by adding at the end the following: 
                        ``This chapter applies to the extent that this 
                        chapter is not in conflict with chapter 4.''.
            (2) Table of sections.--
                    (A) Chapter 2.--The table of sections for chapter 2 
                of title 9, United States Code, is amended by striking 
                the item relating to section 208 and inserting the 
                following:

``208. Application.''.
                    (B) Chapter 3.--The table of sections for chapter 3 
                of title 9, United States Code, is amended by striking 
                the item relating to section 307 and inserting the 
                following:

``307. Application.''.
            (3) Table of chapters.--The table of chapters for title 9, 
        United States Code, is amended by adding at the end the 
        following:

``4. Arbitration of sexual assault claims; rights in             401''.
                            arbitration of sexual harassment 
                            claims.

SEC. 3. PROSPECTIVE EFFECT.

    This Act, and the amendments made by this Act, shall take effect on 
the date of enactment of this Act and shall apply with respect to any 
predispute arbitration agreement that is entered into or amended on or 
after such date.
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