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The Sexual Assault and Sexual Harassment (SASH) Act, recently passed by Biden, amends the Federal Arbitration Act of 2021 that prohibited sexual assault and harassment victims from bringing the lawsuit to court and forced them to arbitrate their legal claims.    The Act further prohibits employers from requiring pre-dispute arbitration and mediation agreements relating to sexual harassment and assault from being filed under tribal, state, or federal law.    Congress experienced a bipartisan split, but eventually, the Act received overwhelming bipartisan support, and they passed the ending of forced arbitration and mediation agreements on February 10, 2022. Soon after, President Biden signed the SASH Act into law on March 3, 2022. The Act is straightforward and contains the following provisions:  

• Prospective plaintiffs can choose whether to litigate their sexual harassment or assault in court or through arbitration, mediation, and negotiation. 
• The victims can choose to bring the suit individually or as a class-action lawsuit.
• The court case is decided by a federal judge and not an arbitrator.
• The new law could apply retroactively, meaning that pending forced arbitration cases are now voidable. However, past concluded cases cannot be reopened or taken to court. 
• The Act is not limited to the employment context but also to other spheres where clients, consumers, and patients have signed contracts forcing them to contemplate arbitration vs. mediation to settle legal claims.

  The SASH Act is a big step toward giving victims of sexual assault or harassment their day in court and forcing individuals and companies to step up their efforts in addressing sexual harassment and assault claims. 

Approach to the SASH Act

Employers often protect an individual’s or company’s image by forcing the sexual misconduct allegations into a private hearing and keeping the matter confidential. In the Statement of Administrative Policy of February 1, 2022, President Biden highlighted that more than 60 million Americans are forced to sign compulsory arbitration and mediation clauses, only to discover its implications later when bringing a claim against their employer.    The President also noted that 50–70 % of women faced unwelcome and unwanted sexual harassment, and the compulsory arbitration clause protected the companies from being held openly accountable.    President Biden further articulated that the SASH Act would prohibit companies from preventing victims from seeking justice through the courts. In addition, he said that the Act would propel the efforts to address sexual assault and harassment, protect victims, strengthen human rights, and promote consistent access to justice.  

Impact of #MeToo Movement on the SASH Act

The #MeToo movement, which started in 2006, evolved to represent the anti-sexual harassment movement that has helped hundreds of victims receive justice. This movement sparked the creation of legislation across states to reduce and eliminate sexual harassment and assault in the workplace.    States such as California, New York, Hawaii, Washington, New Mexico, and Virginia passed a law restricting employers from forcing employees to sign non-disclosure agreements to conceal workplace sexual misconduct.    For example, in Oct 2019, New York passed a law that prohibited companies from adding terms and conditions in a settlement agreement from disclosing facts in the event of a sexual misconduct allegation unless the confidentiality term and condition is the complaints preference.    The SASH Act is the latest addition to other legislation that increases accountability for employers and gives visibility to the victims. After signing the SASH Act, President Biden further stated that sexual harassment and assault shielded perpetrators, silenced survivors, and allowed employers to hide sexual assault and harassment occurrences. 

SASH Act Requirements for Employers

The SASH act does not mandate employers to rewrite or amend their existing mediation, arbitration, and negotiation agreements because some claimants may choose to arbitrate their claims. Still, employers should consider updating their agreements to comply with the SASH Act.    For instance, employers can add clauses that provide non-arbitrable sexual misconduct claims that are separate from other arbitrable claims. Although employers should consider how creating two litigation options can lead to higher expenses.    Employers should also be careful about removing sexual misconduct claims from joint-action waivers from their arbitration and mediation agreements because the SASH Act does not address how actions such as sexual harassment and other claims subject to arbitration should be settled.    In concluding his statement on administrative policy, Biden stated that the administration looks forward to working with Congress on other legislation that addresses sexual misconduct issues and other forced arbitration and mediation matters.    These prospective future legislative changes would support a departure from the long-held policy that encourages the use of mediation, arbitration, and negotiation for such sensitive matters. Employers should remain vigilant about such legislative action. 

Ready to Litigate Your SASH Case?

Tempe, Arizona, residents should not quietly endure sexual harassment and assault while The Sorenson Law Firm can effectively handle such cases. Our experienced attorneys will ensure we take advantage of all the provisions of the new SASH Act.    We also assist employers in drafting contractual agreements that comply with the SASH Act and protect the company from avoidable revenue loss. Book your free consultation today.