[House Report 117-234]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 117-234
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ENDING FORCED ARBITRATION OF SEXUAL ASSAULT AND SEXUAL HARASSMENT ACT
OF 2021
_______
January 28, 2022.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
SUPPLEMENTAL VIEWS
[To accompany H.R. 4445]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 4445) to amend title 9 of the United States Code
with respect to arbitration of disputes involving sexual
assault and sexual harassment, having considered the same,
reports favorably thereon with an amendment and recommends that
the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 3
Background and Need for the Legislation.......................... 4
Hearings......................................................... 11
Committee Consideration.......................................... 12
Committee Votes.................................................. 12
Committee Oversight Findings..................................... 19
Committee Estimate of Budgetary Effects.......................... 19
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 19
Duplication of Federal Programs.................................. 19
Performance Goals and Objectives................................. 19
Advisory on Earmarks............................................. 19
Section-by-Section Analysis...................................... 19
Changes in Existing Law Made by the Bill, as Reported............ 19
Supplemental Views............................................... 22
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ending Forced Arbitration of Sexual
Assault and Sexual Harassment Act of 2021''.
SEC. 2. PREDISPUTE ARBITRATION OF DISPUTES INVOLVING SEXUAL ASSAULT AND
SEXUAL HARASSMENT.
(a) In General.--Title 9 of the United States Code is amended by
adding at the end the following:
``CHAPTER 4--ARBITRATION OF DISPUTES INVOLVING SEXUAL ASSAULT AND
SEXUAL HARASSMENT
``Sec.
``401. Definitions.
``402. No validity or enforceability.
``Sec. 401. Definitions
``In this chapter:
``(1) Predispute arbitration agreement.--The term `predispute
arbitration agreement' means any agreement to arbitrate a
dispute that had not yet arisen at the time of the making of
the agreement.
``(2) Predispute joint-action waiver.--The term `predispute
joint-action waiver' means an agreement, whether or not part of
a predispute arbitration agreement, that would prohibit, or
waive the right of, one of the parties to the agreement to
participate in a joint, class, or collective action in a
judicial, arbitral, administrative, or other forum, concerning
a dispute that has not yet arisen at the time of the making of
the agreement.
``(3) Sexual assault dispute.--The term `sexual assault
dispute' means a dispute involving a nonconsensual sexual act
or sexual contact, as such terms are defined in section 2246 of
title 18 or similar applicable Tribal or State law, including
when the victim lacks capacity to consent.
``(4) Sexual harassment dispute.--The term `sexual harassment
dispute' means a dispute relating to the any of the following
conduct directed at an individual or a group of individuals:
``(A) Unwelcome sexual advances.
``(B) Unwanted physical contact that is sexual in
nature, including assault.
``(C) Unwanted sexual attention, including unwanted
sexual comments and propositions for sexual activity.
``(D) Conditioning professional, educational,
consumer, health care or long-term care benefits on
sexual activity.
``(E) Retaliation for rejecting unwanted sexual
attention.
``Sec. 402. No validity or enforceability
``(a) In General.--Notwithstanding any other provision of this title,
at the election of the person alleging conduct constituting a sexual
harassment dispute or sexual assault dispute, or the named
representative of a class or in a collective action alleging such
conduct, no predispute arbitration agreement or predispute joint-action
waiver shall be valid or enforceable with respect to a case which is
filed under Federal, Tribal, or State law and relates to the sexual
assault dispute or the sexual harassment dispute.
``(b) Determination of Applicability.--An issue as to whether this
chapter applies with respect to a dispute shall be determined under
Federal law. The applicability of this chapter to an agreement to
arbitrate and the validity and enforceability of an 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 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.''.
(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 disputes involving sexual assault and 401''.
sexual harassment.
SEC. 3. APPLICABILITY.
This Act, and the amendments made by this Act, shall apply with
respect to any dispute or claim that arises or accrues on or after the
date of enactment of this Act.
Purpose and Summary
H.R. 4445, the ``Ending Forced Arbitration of Sexual
Assault and Sexual Harassment Act of 2021,'' would prohibit the
enforcement of mandatory, pre-dispute arbitration (``forced
arbitration'') provisions in cases involving sexual assault or
sexual harassment. Over the past several decades, forced
arbitration clauses have become virtually ubiquitous in
everyday contracts.\1\ Often buried deep within the fine print
of employment and consumer contracts, forced arbitration
deprives millions of Americans of their day in court to enforce
state and federal rights.\2\ Because arbitration lacks the
transparency and precedential guidance of the justice system,
there is no guarantee that the relevant law will be applied to
these disputes or that fundamental notions of fairness and
equity will be upheld in the process.\3\ Furthermore, due to
the secretive nature of this system, these disputes are often
shielded from public scrutiny.\4\
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\1\See Justice Restored: Ending Forced Arbitration and Protecting
Fundamental Rights: Hearing Before the Subcomm. on Antitrust,
Commercial, and Admin. Law of the H. Comm. on the Judiciary, 117th
Cong. (2021); Jessica Silver-Greenberg & Robert Gebeloff, Arbitration
Everywhere, Stacking Deck of Justice, N.Y. Times (Nov. 1, 2015),
https://nyti.ms/2k6cZ1z (``By inserting individual arbitration clauses
into a soaring number of consumer and employment contracts, companies .
. . devised a way to circumvent the courts and bar people from joining
together in class-action lawsuits, realistically the only tool citizens
have to fight illegal or deceitful business practices.'').
\2\Consumer Fin. Prot. Bureau, Arbitration Study Rep. to Cong.,
pursuant to Dodd--Frank Wall Street Reform and Consumer Protection Act
Sec. 1028(a) (2015), http://files.consumerfinance.gov/f/
201503_cfpb_arbitration-study-report-to-congress-2015.pdf.
\3\See, e.g., Myriam Gilles, The Day Doctrine Died: Private
Arbitration and the End of Law, 2016 U. Ill. L. Rev. 371 (2016).
\4\Letter from Nat'l Ass'n of Att'ys Gen. to Cong. Leadership (Feb.
12, 2018), http://myfloridalegal.com/webfiles.nsf/WF/HFIS-AVWMYN/$file/
NAAG+letter+to+Congress+Sexual+ Harassment+Mandatory+Arbitration.pdf.
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Due to the prevalence of these clauses in employment and
consumer disputes, victims of sexual violence and harassment
are often unable to seek justice in a court of law, enforce
their rights under state and federal legal protections, or even
simply share their experiences. When an employee who is subject
to a forced arbitration clause sues after being raped,
assaulted, or harassed at work, the company is entitled, under
the Federal Arbitration Act (FAA), to force the suit into
arbitration. Similarly, a consumer who signs an arbitration
clause and is assaulted at a business can be forced into an
arbitration proceeding.
In many forced arbitration cases, the company is entitled
to choose the arbitrator who decides the case, as well as the
rules of procedure and evidence that apply, and the
distribution of costs of the arbitration. The rules also
protect the company by keeping the records of an arbitration
secret. Because the records in arbitration are protected,
employers that use arbitration clauses in their employment
contracts can retaliate against a victim--rather than confront
the harasser or the attacker--without fear of their actions
becoming public through the courts. The secretive nature of
arbitration also prevents victims from sharing their stories.
This allows for the growth of office cultures that ignore
harassment and retaliate against those who report it, prevent
future victims from being warned about dangerous companies and
individuals, and create incentives for the corporate protection
of rapists and other serial harassers.
H.R. 4445 would restore access to justice for millions of
victims of sexual assault or harassment who are currently
locked out of the court system and are forced to settle their
disputes against companies in a private system of arbitration
that often favors the company over the individual. This
critical legislation is supported by a coalition of survivors
of sexual harassment or assault and their allies, including the
National Center on Domestic and Sexual Violence, the National
Coalition Against Domestic Violence, the National Domestic
Violence Hotline, the National Network to End Domestic
Violence, RAINN, and the Sexual Violence Prevention
Association, among others. It is also supported by numerous
public interest and advocacy organizations, such as Public
Citizen and the American Association of Justice.\5\
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\5\Letter from Public Citizen & American Association for Justice et
al., Advocacy Coalition, to U.S. Rep. Nancy Pelosi (D-CA), Speaker,
House of Representatives (Jan. 31, 2022) (on file with staff of H.
Comm. on the Judiciary).
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Background and Need for the Legislation
Unlike the judicial system--in which courts' decisions are
generally public and, by building on precedent, cumulatively
create a body of law--the results of arbitration disputes are
often kept secret.\6\ For example, the arbitration protocols
for the American Arbitration Association state that arbitrators
of consumer disputes must ``maintain the privacy of the hearing
to the extent permitted by applicable law.''\7\ Further, a
coalition of state attorneys general--representing all 50
states, the District of Columbia, and several U.S.
territories--have similarly noted that arbitration's required
``veil of secrecy'' applies to workplace sexual harassment
claims, which may prevent similarly situated persons from
learning of illegal conduct and seeking relief.\8\ The
coalition referred to this phenomenon as a ``culture of silence
that protects perpetrators at the cost of their victims.''\9\
This opacity often prevents others from learning of widespread
misconduct. As Terri Gerstein, the Director of the State and
Local Enforcement Project at the Harvard Law School Labor and
Worklife Program, noted, the secretive nature of arbitration
``has allowed outrageous violations, in some cases years of
sexual harassment and predation, to remain hidden from view and
therefore to continue.''\10\
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\6\Justice Denied: Forced Arbitration and the Erosion of our Legal
System: Hearing on H.R. 963, H.R. 7109, and H.R. 2631 Before the
Subcomm. on Antitrust, Commercial, and Admin. Law of the H. Comm on the
Judiciary, 116th Cong. 3-4, 10 (2019) (statement of Gretchen Carlson,
advocate and former Fox News commentator; statement of Professor Myriam
Gilles, Paul R. Verkuil Chair in Pub. L., Benjamin N. Cardozo Sch. of
L.).
\7\Nat'l Consumer Disp. Advisory Comm., Consumer Due Process
Protocol, Principle 12.2, Am. Arbitration Ass'n, https://www.adr.org/
sites/default/files/document_repository/Consumer%20
Due%20Process%20Protocol%20(1).pdf.
\8\Letter from Nat'l Ass'n of Att'ys Gen. to Cong. Leadership (Feb.
12, 2018), http://myfloridalegal.com/webfiles.nsf/WF/HFIS-AVWMYN/$file/
NAAG+letter+to+Congress+Sexual+ Harassment+Mandatory+Arbitration.pdf.
\9\Id.
\10\Terri Gerstein, Forced Arbitration is Unjust and Deeply
Unpopular. Can Congress End It?, Slate (Mar. 1, 2019), https://
slate.com/news-and-politics/2019/03/congress-forced-arbitration-fair-
act.html.
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Forced arbitration also lacks many of the procedural
safeguards of the justice system.\11\ For example, in forced
arbitration, a company may increase the expense of bringing a
claim,\12\ limit discovery,\13\ or eliminate protections
related to the geographic proximity of the resolution
forum,\14\ formal civil procedure rules, access to counsel,\15\
and the right to bring similar claims jointly.\16\
Additionally, the company imposing arbitration often selects
the presiding arbitrator or arbitration provider,\17\ creating
a conflict of interest in which the purportedly neutral
arbitrator may be motivated by the prospect of obtaining repeat
business from the company rather than the desire to fairly
assess the claim.\18\
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\11\Id.
\12\Arbitration clauses may impose high costs on consumers, such as
requiring travel to a distant forum or selection of a high-fee
arbitrator--possible expenses which a plaintiff filing in a local court
would not have to incur. See Lisa B. Bingham, Control over Dispute-
System Design and Mandatory Commercial Arbitration, 67 L. & Contemp.
Probs. 221, 234-35 (2004).
\13\See Katherine Palm, Note, Arbitration Clauses in Nursing Home
Admission Agreements: Framing the Debate, 14 Elder L.J. 453, 478 n.172
(2006).
\14\See Ziva Branstetter, Nursing Home Policy Challenged, Tulsa
World (Mar. 4, 2002), https://www.tulsaworld.com/archives/nursing-home-
policy-challenged/article_6131212f-481c-59c4-af51-7c2a188e37f9.html
(Oklahoma nursing home's arbitration clause requires residents to
travel to New Mexico at their own expense for arbitration proceeding).
\15\The lower probability of victory and legal fees may discourage
some attorneys from representing individuals in arbitration
proceedings. See Charles L. Knapp, Taking Contracts Private: The Quiet
Revolution in Contract Law, 71 Fordham L. Rev. 761, 783-84 (2002).
\16\See Jean R. Sternlight, As Mandatory Binding Arbitration Meets
the Class Action, Will the Class Action Survive?, 42 Wm. & Mary L. Rev.
1, 6 (2000).
\17\The major arbitration providers include the American
Arbitration Association and JAMS, which set their own procedures,
contract with agencies and companies to arbitrate future disputes, and
provide arbitrators and panels to hear disputes. Katherine V.W. Stone &
Alexander J.S. Colvin, Econ. Policy Inst., The Arbitration Epidemic:
Mandatory Arbitration Deprives Workers and Consumers of Their Rights 17
(2015), https://www.epi.org/publication/the-arbitration-epidemic/.
\18\See Carrie Menkel-Meadow, Do the ``Haves'' Come Out Ahead in
Alternative Judicial Systems?: Repeat Players in ADR, 15 Ohio St. J. on
Disp. Resol. 19, 35-37 (1999).
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As a result of the decline of enforcement of state and
federal statutory protections, forced arbitration makes it more
likely that corporate harms and abuse will go unchallenged. As
Professor Myriam Gilles testified last Congress, many
companies' arbitration clauses specifically identify federal
protections that arbitration makes unenforceable in court, such
as rights under the Civil Rights Act of 1964 and the Family
Medical Leave Act.\19\ In this respect, as Professor Gilles
observes, ``forced arbitration is not an alternative regime for
resolving claims, it is a means of suppressing legal claims
altogether.''\20\ Judge William G. Young, who was appointed by
President Ronald Reagan, likewise stated that the proliferation
of forced arbitration clauses means that ``business has a good
chance of opting out of the legal system altogether and
misbehaving without reproach.''\21\ Deepak Gupta, a leading
public interest attorney, similarly testified that forced
arbitration has undermined the enforcement of statutory
rights.\22\ He explained:
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\19\Justice Denied: Forced Arbitration and the Erosion of our Legal
System: Hearing on H.R. 963, H.R. 7109, and H.R. 2631 Before the
Subcomm. on Antitrust, Commercial, and Admin. Law of the H. Comm. on
the Judiciary, 116th Cong. 7 (2019) (statement of Myriam Gilles, Paul
R. Verkuil Chair in Pub. L., Benjamin N. Cardozo Sch. of L.).
\20\Arbitration in America: Hearing Before the S. Comm. on the
Judiciary, 116th Cong. 1 (2019) (Responses to Questions for the Record
of Professor Myriam Gilles, Paul R. Verkuil Chair in Pub. L., Benjamin
N. Cardozo Sch. of L.).
\21\Jessica Silver-Greenberg & Robert Gebeloff, Arbitration
Everywhere, Stacking Deck of Justice, N.Y. Times (Oct. 31, 2015),
https://nyti.ms/2k6cZ1z (``By inserting individual arbitration clauses
into a soaring number of consumer and employment contracts, companies .
. . devised a way to circumvent the courts and bar people from joining
together in class-action lawsuits, realistically the only tool citizens
have to fight illegal or deceitful business practices.'').
\22\Justice Denied: Forced Arbitration and the Erosion of our Legal
System: Hearing on H.R. 963, H.R. 7109, and H.R. 2631 Before the
Subcomm. on Antitrust, Commercial, and Admin. Law of the H. Comm. on
the Judiciary, 116th Cong. 2 (2019) (statement of Deepak Gupta,
Founding Principal, Gupta Wessler PLLC).
As the U.S. Supreme Court has itself acknowledged,
the presence of a forced arbitration clause often means
that Americans will have no effective method of
asserting their rights or getting justice under federal
laws that could otherwise have been enforced in a
court--consumer protection or antitrust laws, for
example, or prohibitions on sex or race discrimination.
If Congress passes laws that can't be enforced in the
real world, what good are those laws?\23\
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\23\Id.
Although proponents claim that arbitration decreases
litigation costs for consumers, consumers often do not receive
any benefit of reduced costs through forced arbitration.\24\
Instead, arbitration clauses appear to dissuade consumers from
adjudicating disputes altogether.\25\ Moreover, the lower
probability of victory, the lack of class representation, and
meager legal fees may also discourage attorneys from
representing individuals in arbitration proceedings.\26\ As
Justice Stephen G. Breyer explained:
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\24\Consumer Fin. Prot. Bureau, Arbitration Study: Rep. to Cong.,
pursuant to Dodd-Frank Wall Street Reform and Consumer Protection Act
Sec. 1028(a), at Sec. 10 (2015), http://files.consumerfinance.gov/f/
201503_cfpb_arbitration-study-report-to-congress-2015.pdf (``Using two
measures of credit offered, we did not find any statistically
significant evidence that companies that eliminated arbitration
provisions reduced the credit they offered.'').
\25\Justice Denied: Forced Arbitration and the Erosion of our Legal
System: Hearing on H.R. 963, H.R. 7109, and H.R. 2631 Before the
Subcomm. on Antitrust, Commercial, and Admin. Law of the H. Comm. on
the Judiciary, 116th Cong. 3-4 (2019) (statement of Deepak Gupta,
Founding Principal, Gupta Wessler PLLC).
\26\See Charles L. Knapp, Taking Contracts Private: The Quiet
Revolution in Contract Law, 71 Fordham L. Rev. 761, 783-84 (2002).
What rational lawyer would have signed on to
represent the [plaintiffs] in litigation for the
possibility of fees stemming from a $30.22 claim? The
realistic alternative to a class action is not 17
million individual suits, but zero individual suits, as
only a lunatic or a fanatic sues for $30.\27\
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\27\AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 365 (2011)
(Breyer, J. dissenting) citing Carnegie v. Household Int'l, Inc., 376
F.3d 656, 661 (CA7 2004).
In sum, forced arbitration has transferred the rights of
workers and consumers to a secretive, closed, and private
system designed by corporate interests to evade oversight and
accountability.\28\ Unsurprisingly, 84% of Americans across the
political spectrum support ending forced arbitration in
employment and consumer disputes.\29\
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\28\Jessica Silver-Greenberg & Michael Corkery, In Arbitration, A
`Privatization of the Justice System,' N.Y. Times (Nov. 1, 2015),
https://www.nytimes.com/2015/11/02/business/dealbook/in-arbitration-a-
privatization-of-the-justice-system.html.
\29\See Guy Molyneux & Geoff Garin, National Survey on Required
Arbitration, Hart Research Assocs. (Feb. 28, 2019) (on file with
staff).
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I. Recent Case Law Ignores the Legislative Intent of the Federal
Arbitration Act
On February 12, 1925, Congress codified the use of
arbitration through the FAA.\30\ The FAA was adopted to put
arbitration agreements on equal footing with other contracts in
certain disputes.\31\ The legislative history of the FAA
suggests that the law was intended to narrowly apply to
disputes between merchants, not between a business and its
consumers or workers.\32\ In 1967, the Supreme Court
characterized the FAA as ``plainly designed'' to include
protections against ``captive customers or employees.''\33\ The
Court noted that it was clear from congressional debate on the
Act that Congress did not intend for parties with unequal
bargaining power to be forced to arbitrate claims on a ``take-
it-or-leave-it basis'':
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\30\Pub. L. No. 68-401, 43 Stat. 883 (1925) (codified at 9 U.S.C.
Sec. Sec. 1-16 (2019)).
\31\H.R. Rep. No. 68-96, at 1 (1924) (``The purpose of this bill is
to make valid and enforcible [sic] agreements for arbitration . . . in
the Federal courts.'').
\32\See, e.g., H.R. Rep No. 68-96, at 1 (1924); Christopher R.
Leslie, The Arbitration Bootstrap, 94 Tex. L. Rev. 265, 305 (2015)
(``The most important fact about the testimony, hearings, and reports
leading up to congressional enactment of the FAA is that every witness,
every Senator, and every Representative discussed one issue and one
issue only: arbitration of contract disputes between merchants.'').
\33\Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395,
414 (1967).
On several occasions [Members of Congress] expressed
opposition to a law which would enforce even a valid
arbitration provision contained in a contract between
parties of unequal bargaining power. Senator Walsh
cited insurance, employment, construction, and shipping
contracts as routinely containing arbitration clauses
and being offered on a take-it-or-leave-it basis to
captive customers or employees. He noted that such
contracts ``are really not voluntarily (sic) things at
all'' because ``there is nothing for the man to do
except to sign it; and then he surrenders his right to
have his case tried by the court.'' He was emphatically
assured by the supporters of the bill that it was not
their intention to cover such cases.\34\
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\34\Id. (quoting Sales and Contracts to Sell in Interstate and
Foreign Commerce, and Federal Commercial Arbitration: Hearing on S.
4213 and S. 4214 Before the Subcomm. of the S. Comm. on the Judiciary,
67th Cong. 9-11 (1923) [hereinafter 1923 Hearing on S. 4213 and S.
4214] (statement of Senator Walsh)).
Indeed, the drafters of the FAA had made clear that
arbitration was not appropriate for substantive questions of
law. Julius Henry Cohen, the law's architect, emphasized that
it was ``not the proper method for deciding points of law of
major importance involving constitutional questions or policy
in the application of statutes.''\35\ Arbitration was also
rarely invoked in state courts because it was widely considered
not to preempt state law.\36\ This consensus was supported by
the FAA's legislative history. During hearings on the measure,
Cohen testified that ``[t]here is no disposition therefore by
means of the Federal bludgeon to force an individual State into
an unwilling submission to arbitration enforcement.''\37\
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\35\Andrea Cann Chandrasekher & David Horton, Arbitration Nation:
Data from Four Providers, 107 Cal. L. Rev. 1, 11 n.67 (2019) (quoting
Julius Henry Cohen & Kenneth Dayton, The New Federal Arbitration Law,
12 Va. L. Rev. 265, 281 (1926)).
\36\David Horton, The Federal Arbitration Act and Testamentary
Instruments, 90 N.C. L. Rev. 1027, 1039 (2012).
\37\Id. at 1039 n.55 (citing Arbitration of Interstate Commercial
Disputes: Joint Hearings on S. 1005 and H.R. 646 Before the Subcomms.
of the Comms. on the Judiciary, 68th Cong. 40 (1924)).
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In a series of decisions beginning in the 1980s,\38\
however, the Supreme Court drastically expanded the
applicability of the FAA to arbitration clauses in everyday
contracts, ``push[ing] arbitration into the mainstream.''\39\
The Court has upheld the enforcement of arbitration clauses
even when doing so prevents an individual from vindicating a
state or federal statutory right.\40\ Furthermore, by imposing
arbitration on a ``take-it-or-leave-it'' basis, large companies
have largely eviscerated the congressional intent of
arbitration as a voluntary process agreed to between parties of
equal bargaining power.\41\
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\38\See, e.g., Moses H. Cone Mem'l Hosp. v. Mercury Constr., 460
U.S. 1 (1983); Justice Denied: Forced Arbitration and the Erosion of
Our Legal System: Hearing on H.R. 963, H.R. 7109, and H.R. 2631 Before
the Subcomm. on Antitrust, Commercial, and Admin. Law of the H. Comm.
On the Judiciary, 116th Cong. 25-29 (2019) (statement of Deepak Gupta,
Founding Principal, Gupta Wessler PLLC).
\39\Andrea Cann Chandrasekher & David Horton, Arbitration Nation:
Data from Four Providers, 107 Cal. L. Rev. 1, 12 (2019).
\40\See, e.g., Preston v. Ferrer, 552 U.S. 346, 349 (2008)
(``[W]hen parties agree to arbitrate all questions arising under a
contract,'' the Federal Arbitration Act supersedes state laws.);
Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995); Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).
\41\During the passage of the Federal Arbitration Act, Congress did
not even intend to allow binding arbitration agreements on individuals
if the contracts were between parties of unequal bargaining power.
Prima Paint Corp., 388 U.S. at 414 (1967) (Black, J., dissenting)
(citing 1923 Hearing on S. 4213 and S. 4214).
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II. The Effect of Forced Arbitration on Statutory Rights of Sexual
Assault and Sexual Harassment Victims
Forced arbitration is now widespread in consumer
contracts.\42\ In many cases, consumers are unaware of forced
arbitration clauses in the contracts of commonly used goods and
services.\43\ These clauses are sometimes hidden inside of
envelopes,\44\ delivery boxes,\45\ and privacy policies.\46\
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\42\Justice Denied: Forced Arbitration and the Erosion of our Legal
System: Hearing on H.R. 963, H.R. 7109, and H.R. 2631 Before the
Subcomm. on Antitrust, Commercial, and Admin. Law of the H. Comm. on
the Judiciary, 116th Cong. 1-2 (2019) (statement of Deepak Gupta,
Founding Principal, Gupta Wessler PLLC).
\43\See Wash. Mut. Fin. Grp. v. Bailey, 364 F.3d 260, 264-66 (5th
Cir. 2004) (holding that an arbitration agreement was enforceable
against illiterate consumers, even though they had no knowledge of the
arbitration requirement); Am. Gen. Fin. Servs., Inc. v. Griffin, 327 F.
Supp. 2d 678, 683 (N.D. Miss. 2004) (upholding arbitration agreement
even though blind consumer had no knowledge of agreement); Marsh v.
First USA Bank, N.A., 103 F. Supp. 2d 909, 916-18 (N.D. Tex. 2000)
(finding that inserting an arbitration clause in monthly billing
statements constituted sufficient notice).
\44\See Ting v. AT&T, 319 F.3d 1126, 1134 (9th Cir. 2003).
\45\See Hill v. Gateway 2000, Inc., 105 F.3d 1147, 1148 (7th Cir.
1997).
\46\See Stephanie Strom, When `Liking' a Brand Online Voids the
Right to Sue, N.Y. Times (Apr. 16, 2014), https://www.nytimes.com/2014/
04/17/business/when-liking-a-brand-online-voids-the-right-to-sue.html.
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Forced arbitration provisions imposed on consumers for
using everyday goods and services often prevent victims of
civil rights violations from pursuing their claims in
court.\47\ For example, Massage Envy, the country's largest
massage chain, forced hundreds of women's allegations of sexual
assault into arbitration.\48\ In one case, a customer who has
alleged that she was sexually assaulted by one of the company's
therapists attempted to cancel her monthly membership to
Massage Envy for over a year, but was refused unless she agreed
to forced arbitration.\49\ Another sexual assault survivor
said, ``I was mortified. . . . It's just horrifying that they
would allow this to happen and then take steps to cover up what
is happening'' through forced arbitration.\50\
---------------------------------------------------------------------------
\47\Heidi Shierholz, Econ. Policy Inst., Forced Arbitration is Bad
for Consumers (2017), https://www.epi.org/publication/forced-
arbitration-is-bad-for-consumers/.
\48\See Brooks Jarosz, Fears Loom that Sexual Assault Cases
Involving Massage Envy Will Remain Private, Fox KVTU (Dec. 21, 2018),
http://www.ktvu.com/news/fears-loom-sexual-assault-cases-involving-
massage-envy-will-remain-private.
\49\Terri Gerstein, Forced Arbitration is Unjust and Deeply
Unpopular. Can Congress End It?, Slate (Mar. 1, 2019), https://
slate.com/news-and-politics/2019/03/congress-forced-arbitration-fair-
act.html.
\50\Brooks Jarosz, Fears Loom that Sexual Assault Cases Involving
Massage Envy Will Remain Private, Fox KVTU (Dec. 21, 2018), http://
www.ktvu.com/news/fears-loom-sexual-assault-cases-involving-massage-
envy-will-remain-private.
---------------------------------------------------------------------------
As Gretchen Carlson, an advocate and former Fox News
commentator, noted in her testimony during the Antitrust,
Commercial, and Administrative Law (ACAL) Subcommittee's
hearing on forced arbitration:
These women put their trust into a company and its
employees, only to suffer the trauma of being sexually
assaulted and then continue to suffer as the company
did little to help them and instead tried to silence
them. Now that these women are seeking public
accountability in court, the company is trying to force
them into arbitration, because hidden in the fine print
of the terms and conditions of the company's app and
iPads (used to check in for services) was a forced
arbitration clause.\51\
---------------------------------------------------------------------------
\51\Justice Denied: Forced Arbitration and the Erosion of our Legal
System: Hearing on H.R. 963, H.R. 7109, and H.R. 2631 Before the
Subcomm. on Antitrust, Commercial, and Admin. Law of the H. Comm. on
the Judiciary, 116th Cong. 2-3 (2019) (statement of Gretchen Carlson,
advocate and former Fox News commentator).
In 2015, the Consumer Financial Protection Bureau (CFPB)
found that arbitration has undermined the ability of consumers
to seek redress for abusive, anti-consumer practices.\52\
Richard Cordray, then-Director of the CFPB, explained that
based on this research, the CFPB had concluded that ``any
prospect of meaningful relief for groups of consumers is
effectively extinguished by forcing them to fight their legal
disputes as lone individuals.''\53\ Cordray also warned that
``many businesses have sought to use arbitration clauses not
simply as an alternative means of resolving disputes, but
effectively to insulate themselves from accountability by
blocking group claims.''\54\ Nowhere is this more evident than
in sexual violence and harassment cases, where survivors are
unaware or will not have access to a repeat offender's history
of sexual violence or harassment.
---------------------------------------------------------------------------
\52\Richard Cordray, Dir., Consumer Fin. Prot. Bureau, Remarks at
Field Hearing on Arbitration Clauses (May 5, 2016), https://
www.consumerfinance.gov/about-us/newsroom/prepared-remarks-cfpb-
director-richard-cordray-field-hearing-arbitration-clauses/.
\53\Id.
\54\Id.
---------------------------------------------------------------------------
According to a 2017 report by the Economic Policy
Institute, 60.1 million workers--the majority of non-union
employees in the private sector--have signed away their rights
through forced arbitration clauses.\55\ As this report notes,
this trend has ``weakened the position of workers whose rights
are violated, barring access to the courts for all types of
legal claims, including those based on Title VII of the Civil
Rights Act, the Americans with Disabilities Act, the Family and
Medical Leave Act, and the Fair Labor Standards Act.''\56\ When
employees work under forced arbitration clauses, they are less
likely to win in disputes with their employers,\57\ or even to
bring them at all.\58\ Workers that do enforce their rights in
the workplace receive less in damages in arbitration than would
have been available in court.\59\
---------------------------------------------------------------------------
\55\Alexander J.S. Colvin, Econ. Policy Inst., The Growing Use of
Mandatory Arbitration 2 (2017), https://www.epi.org/files/pdf/
135056.pdf.
\56\Id. at 1.
\57\Id. at 3.
\58\Id. at 5-6.
\59\Id.
---------------------------------------------------------------------------
Worse still, forced arbitration clauses in employment
contracts are often coupled with non-disclosure agreements,\60\
ensuring minimal scrutiny of corporate misconduct. For example,
the claims of hundreds of workers at Sterling Jewelers--the
parent company of Jared Jewelers and Kay Jewelers--who were
victims of ``groping and sexual coercion and sexual degradation
and rape'' in the workplace over a period of years were forced
into arbitration.\61\ More than 200 women filed statements
describing ``an atmosphere in which female employees endured
unwanted sexual advances from male superiors at the
company.''\62\ These statements from women across the country
alleged, among other egregious forms of abuse and harassment,
that male supervisors coerced their female subordinates into
performing sexual favors for them in order to receive better
jobs or higher pay.\63\
---------------------------------------------------------------------------
\60\Laura Lawless, Sexual Harassment Claims Put Non-Disclosure and
Arbitration Agreements Under Scrutiny, Resulting in a Flurry of
Legislative Action, Nat'l L. Rev. (Dec. 7, 2017), https://
www.natlawreview.com/article/sexual-harassment-claims-put-non-
disclosure-and-arbitration-agreements-under (``Many employers require
employees to sign [non-disclosure agreements] as a condition of
employment in order to prevent the dissemination and misuse of
companies' confidential and proprietary information.'').
\61\Taffy Brodesser-Akner, The Company that Sells Love to America
Had a Dark Secret, N.Y. Times Mag. (Apr. 23, 2019), https://
www.nytimes.com/2019/04/23/magazine/kay-jewelry-sexual-harassment.html.
\62\Rebecca Hersher, Parent Company of Kay Jewelers Accused of Wage
Discrimination Against Women, NPR: The Two-Way (Mar. 1, 2017), https://
www.npr.org/sections/thetwo-way/2017/03/01/517684117/thousands-allege-
wage-and-promotion-discrimination-by-sterling-jewelers.
\63\Drew Harwell, Hundreds Allege Sex Harassment, Discrimination at
Kay and Jared Jewelry Company, Wash. Post (Feb. 27, 2017), https://
www.washingtonpost.com/business/economy/hundreds-allege-sex-harassment-
discrimination-at-kay-and-jared-jewelry-company/2017/02/27/8dcc9574-
f6b7-11e6-bf01-d47f8cf9b643-story.html.
---------------------------------------------------------------------------
The claims of these women, and nearly 70,000 others who
were part of a class action lawsuit against Sterling, were
subject to forced arbitration,\64\ denying their access to
justice. Sterling, like many other American companies, subjects
its employees to forced arbitration, requiring them to waive
their rights to pursue their claims in court, including claims
of discrimination and sexual harassment.\65\ According to a New
York Times investigation, this secretive process minimized the
company`s exposure to additional claims or public scrutiny.\66\
As the report explains:
---------------------------------------------------------------------------
\64\Id.
\65\Id.
\66\Taffy Brodesser-Akner, The Company that Sells Love to America
Had a Dark Secret, N.Y. Times Mag. (Apr. 23, 2019), https://
www.nytimes.com/2019/04/23/magazine/kay-jewelry-sexual-harassment.html.
Arbitration meant that instead of being heard in a
public court, [the victims] had to proceed privately in
Sterling`s in-house system, called Resolve. The first
step of Resolve was an internal investigation. If the
employee wasn`t satisfied by the results of that
investigation, he or she could ask to be heard by a
panel of the employee`s peers and an employment lawyer,
all selected by Sterling. If the employee was still
dissatisfied, the case was sent to arbitration.
Sterling paid the arbitrator. The hearing`s proceedings
were carried out with judicial oversight, but they were
done in private, and their outcome was sealed.
Afterward, if there was a settlement, the employee
often had to sign a nondisclosure agreement that
prohibited the employee from speaking about the case
again. The benefit of arbitration to the employee was
that the claim was usually resolved more speedily. The
benefit to the company was that it was resolved in
secret. The secrecy was the point . . . . [I]n
arbitration, the proceedings are so secretive that the
lawyers weren`t allowed to tell other women in the suit
---------------------------------------------------------------------------
what had happened to them.\67\
\67\Id. (emphasis added).
In light of these concerns, a coalition of state attorneys
general--from all 50 states, the District of Columbia, and
several U.S. territories--have written Congress in support of
ending forced arbitration in workplace disputes involving
claims of sexual harassment.\68\ As this bipartisan coalition
notes, ``[e]nding mandatory arbitration of sexual harassment
claims would help to put a stop to the culture of silence that
protects perpetrators at the cost of their victims.''\69\
---------------------------------------------------------------------------
\68\Letter from Nat'l Ass'n of Att'ys Gen. to Cong. Leadership
(Feb. 12, 2018), http://myfloridalegal.com/webfiles.nsf/WF/HFIS-AVWMYN/
$file/NAAG+letter+to+Congress+Sexual+
Harassment+Mandatory+Arbitration.pdf.
\69\Id.
---------------------------------------------------------------------------
Following a series of high-profile disputes involving
sexual and racial harassment, some companies have chosen to
voluntarily limit the use of forced arbitration in employment
contracts. For example, Google announced that it would no
longer include forced arbitration clauses in its employment
contracts, following a worldwide walkout to protest the
company`s handling of sexual harassment claims.\70\
---------------------------------------------------------------------------
\70\Alexia Fernandez Campbell, Why Thousands of Google Employees
Are Protesting Across the World, Vox (Nov. 1, 2018), https://
www.vox.com/2018/11/1/18051884/google-employee-walkouts-explained;
Nitasha Tiku, Google Ends Forced Arbitration After Employee Protest,
Wired (Feb. 21, 2019), https://www.wired.com/story/google-ends-forced-
arbitration-after-employee-protest/.
---------------------------------------------------------------------------
Hearings
For the purposes of clause 3(c)(6)(A) of House Rule XIII,
the following hearings were used to develop H.R. 4445:
On February 11, 2021, the ACAL Subcommittee held an
oversight hearing entitled ``Justice Restored: Ending Forced
Arbitration and Protecting Fundamental Rights.'' The Majority
witnesses at the hearing were: Myriam Gilles, Professor of Law,
Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School
of Law; Gretchen Carlson, Journalist and Advocate; and Jacob
Weiss, Founder and President, OJ Commerce. The Minority witness
at the hearing was G. Roger King, Senior Labor and Employment
Counsel, HR Policy Association. There, Ms. Carlson testified
about the use of forced arbitration to silence victims of
systemic sexual harassment.\71\ In her testimony, Professor
Gilles similarly explained how forced arbitration ``perpetuates
the exploitation of women in the workplace by shunting victims
into a private system where each is unaware of the other and
where the arbitration provider (who is chosen and paid by the
employer) lacks authority to remedy systemic and recurring
workplace abuse.''\72\
---------------------------------------------------------------------------
\71\Justice Restored: Ending Forced Arbitration and Protecting
Fundamental Rights Before the Subcomm. on Antitrust, Commercial, and
Admin. Law of the H. Comm. on the Judiciary, 117th Cong. 1 (2021)
(statement of Gretchen Carlson).
\72\Id. at 9 (statement of Professor Myriam Gilles, Paul R. Verkuil
Chair in Pub. L., Benjamin N. Cardozo Sch. of L.), https://
docs.house.gov/meetings/JU/JU05/20190516/109484/HHRG-116-JU05-Wstate-
GillesM-20190516.pdf.
---------------------------------------------------------------------------
On November 16, 2021, the Committee on the Judiciary held a
hearing entitled ``Silenced: How Forced Arbitration Keeps
Victims of Sexual Violence and Sexual Harassment in the
Shadows.'' The Majority witnesses at the hearing were: Eliza
Dushku, Actor, Producer, and Graduate Student; Tatiana
Spottiswoode, Law Student, Columbia Law School; Andowah Newton
of New York, NY; Lora Henry of Canton, OH; and Professor Myriam
Gilles, Professor of Law, Paul R. Verkuil Chair in Public Law,
Cardozo School of Law. The Minority witnesses at the hearing
were: Anna St. John, President and General Counsel, Hamilton
Lincoln Law Institute; and Sarah Parshall Perry, Legal Fellow,
Edwin Meese III Center for Legal and Judicial Studies, The
Heritage Foundation. During the hearing, survivors of sexual
harassment or sexual assault testified about how forced
arbitration clauses blocked their ability to seek justice and
hold wrongdoers accountable, and shielded this misconduct from
public scrutiny.\73\
---------------------------------------------------------------------------
\73\Silenced: How Forced Arbitration Keeps Victims of Sexual
Violence and Sexual Harassment in the Shadows Before the Subcomm. on
Antitrust, Commercial, and Admin. Law of the H. Comm on the Judiciary,
117th Cong. 1 (2021) (statement of Professor Myriam Gilles, Paul R.
Verkuil Chair in Pub. L,, Benjamin N. Cardozo Sch. of L.).
---------------------------------------------------------------------------
Committee Consideration
On November 17, 2021, the Committee met in open session and
ordered the bill, H.R. 4445, favorably reported with an
amendment, by a rollcall vote of 27 to 14, a quorum being
present.
Committee Votes
In compliance with clause 3(b) of House Rule XIII, the
following rollcall votes occurred during the Committee`s
consideration of H.R. 4445:
1. An amendment by Mr. Buck of Colorado to amend the bill`s
definition of sexual harassment was defeated by a rollcall vote
of 15 to 20. The vote was as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
2. An amendment by Mr. Bishop of North Carolina to amend
the Federal Arbitration Act to exempt claims related to sexual
assault or harassment disputes failed by a rollcall vote of 13
to 24. The vote was as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
3. The motion to report H.R. 4445, as amended, favorably
was agreed to by a rollcall vote of 27 to 14. The vote was as
follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Committee Oversight Findings
In compliance with clause 3(c)(1) of House Rule XIII, the
Committee advises that the findings and recommendations of the
Committee, based on oversight activities under clause 2(b)(1)
of House Rule X, are incorporated in the descriptive portions
of this report.
Committee Estimate of Budgetary Effects
Pursuant to clause 3(d)(1) of House Rule XIII, the
Committee adopts as its own the cost estimate prepared by the
Director of the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974.
New Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(2) of House Rule XIII and section
308(a) of the Congressional Budget Act of 1974, and pursuant to
clause (3)(c)(3) of House Rule XIII and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received from the Director of Congressional Budget
Office a budgetary analysis and a cost estimate of this bill.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of House Rule XIII, no provision
of H.R. 4445 establishes or reauthorizes a program of the
federal government known to be duplicative of another federal
program.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
House Rule XIII, H.R. 4445 improves access to justice for
survivors of sexual assault and harassment by allowing these
parties to elect arbitration after a dispute has arisen.
Advisory on Earmarks
In accordance with clause 9 of House Rule XXI, H.R. 4445
does not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits as defined in clause 9(d),
9(e), or 9(f) of House Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short Title. Section 1 sets forth the short title
of the bill as the ``Ending Forced Arbitration of Sexual
Assault and Sexual Harassment Act of 2021.''
Sec. 2. Predispute Arbitration of Disputes Involving Sexual
Assault and Sexual Harassment. Sec. 2(a) amends Title 9 of the
United States Code by adding at the end ``Chapter 4--
Arbitration of Disputes Involving Sexual Assault and Sexual
Harassment.''
New section 401 defines various terms used under new
chapter 4. For example, it defines ``sexual assault dispute''
as ``a dispute involving a nonconsensual sexual act or sexual
contact, as such terms are defined in section 2246 of title 18
or similar applicable Tribal or State law, including when the
victim lacks capacity to consent.'' The term ``sexual
harassment dispute'' means a ``dispute relating to any of the
following conduct directed at an individual or a group of
individuals: (A) Unwelcome sexual advances; (B) Unwanted
physical contact that is sexual in nature, including assault;
(C) Unwanted sexual attention, including unwanted sexual
comments and propositions for sexual activity; (D) Conditioning
professional, educational, consumer, health care or long-term
care benefits on sexual activity; or (E) Retaliation for
rejecting unwanted sexual attention.''
New section 402 first provides that at the election of a
person alleging conduct that constitutes a sexual harassment or
sexual assault claim, no pre-dispute arbitration agreement or
pre-dispute joint-action waiver shall be valid or enforceable
relating to disputes described within the chapter. It further
provides that a court, and not an arbitrator, shall determine
whether this chapter applies to an agreement to arbitrate, and
the enforceability of that agreement.
Section 2(b) makes a series of technical and conforming
amendments.
Sec. 3. Effective Date. Section 3 provides that the
legislation applies to any dispute or claim that arises or
accrues on or after the date of enactment of the legislation.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of House Rule XIII, changes
in existing law made by the bill, H.R. 4445, as reported, are
shown as follows:
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
TITLE 9, UNITED STATES CODE
Chap. Sec.
General provisions...............................................1
* * * * * * *
Arbitration of disputes involving sexual assault and sexual 4.
harassment...................................................401
CHAPTER 1--GENERAL PROVISIONS
* * * * * * *
Sec. 2. Validity, irrevocability, and enforcement of agreements to
arbitrate
A written provision in any maritime transaction or a contract
evidencing a transaction involving commerce to settle by
arbitration a controversy thereafter arising out of such
contract or transaction, or the refusal to perform the whole or
any part thereof, or an agreement in writing to submit to
arbitration an existing controversy arising out of such a
contract, transaction, or refusal, shall be valid, irrevocable,
and enforceable, save upon such grounds as exist at law or in
equity for the revocation of any contract or as otherwise
provided in chapter 4.
* * * * * * *
CHAPTER 2--CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS
Sec.
201. Enforcement of Convention.
* * * * * * *
[208. Chapter 1; residual application.]
208. Application.
* * * * * * *
Sec. 208. [Chapter 1; residual application] Application
Chapter 1 applies to actions and proceedings brought under
this chapter to the extent that chapter is not in conflict with
this chapter or the Convention as ratified by the United
States. This chapter applies to the extent that this chapter is
not in conflict with chapter 4.
* * * * * * *
CHAPTER 3--INTER-AMERICAN CONVENTION ON INTERNATIONAL COMMERCIAL
ARBITRATION
Sec.
301. Enforcement of Convention.
* * * * * * *
[307. Chapter 1; residual application.]
307. Application.
* * * * * * *
Sec. 307. [Chapter 1; residual application] Application
Chapter 1 applies to actions and proceedings brought under
this chapter to the extent chapter 1 is not in conflict with
this chapter or the Inter-American Convention as ratified by
the United States. This chapter applies to the extent that this
chapter is not in conflict with chapter 4.
CHAPTER 4--ARBITRATION OF DISPUTES INVOLVING SEXUAL ASSAULT AND SEXUAL
HARASSMENT
Sec.
401. Definitions.
402. No validity or enforceability.
Sec. 401. Definitions
In this chapter:
(1) Predispute arbitration agreement.--The term
``predispute arbitration agreement'' means any
agreement to arbitrate a dispute that had not yet
arisen at the time of the making of the agreement.
(2) Predispute joint-action waiver.--The term
``predispute joint-action waiver'' means an agreement,
whether or not part of a predispute arbitration
agreement, that would prohibit, or waive the right of,
one of the parties to the agreement to participate in a
joint, class, or collective action in a judicial,
arbitral, administrative, or other forum, concerning a
dispute that has not yet arisen at the time of the
making of the agreement.
(3) Sexual assault dispute.--The term ``sexual
assault dispute'' means a dispute involving a
nonconsensual sexual act or sexual contact, as such
terms are defined in section 2246 of title 18 or
similar applicable Tribal or State law, including when
the victim lacks capacity to consent.
(4) Sexual harassment dispute.--The term ``sexual
harassment dispute'' means a dispute relating to the
any of the following conduct directed at an individual
or a group of individuals:
(A) Unwelcome sexual advances.
(B) Unwanted physical contact that is sexual
in nature, including assault.
(C) Unwanted sexual attention, including
unwanted sexual comments and propositions for
sexual activity.
(D) Conditioning professional, educational,
consumer, health care or long-term care
benefits on sexual activity.
(E) Retaliation for rejecting unwanted sexual
attention.
Sec. 402. No validity or enforceability
(a) In General.--Notwithstanding any other provision of this
title, at the election of the person alleging conduct
constituting a sexual harassment dispute or sexual assault
dispute, or the named representative of a class or in a
collective action alleging such conduct, no predispute
arbitration agreement or predispute joint-action waiver shall
be valid or enforceable with respect to a case which is filed
under Federal, Tribal, or State law and relates to the sexual
assault dispute or the sexual harassment dispute.
(b) Determination of Applicability.--An issue as to whether
this chapter applies with respect to a dispute shall be
determined under Federal law. The applicability of this chapter
to an agreement to arbitrate and the validity and
enforceability of an 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 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.
Supplemental Views
Although I am recorded as a No on final passage of H.R.
4445, the ``Ending Forced Arbitration of Sexual Assault and
Sexual Harassment Act of 2021,'' I intended to vote Yes.
Burgess Owens,
Member of Congress.
[all]