[House Report 117-234]
[From the U.S. Government Publishing Office]


117th Congress     }                                 {         Report
                        HOUSE OF REPRESENTATIVES
 2d Session        }                                 {         117-234

======================================================================



 
 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:
---------------------------------------------------------------------------
    \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:
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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]