In February 2022, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. Like its name suggests, this Act allows persons alleging to be victims of sexual assault or sexual harassment to invalidate arbitration agreements that would have otherwise precluded them from filing a lawsuit in state or federal court involving sexual assault or sexual harassment. Of course, if the person alleging sexual assault or sexual harassment still wants to utilize arbitration, he or she still can. Davenport Evans lawyer Reece M. Almond explains.

Importantly, once in effect, this Act will apply to all contracts—even those that were entered before the passage of the Act. So, for example, if an employment agreement signed in 2019 includes a mandatory arbitration provision for any claim arising out of an employee’s employment, an employee alleging to be the victim of sexual harassment may nevertheless file a lawsuit in state or federal court, and the claim will not be subject to the arbitration provision in the employment agreement.

Proponents of the Act argue mandatory arbitration agreements silenced victims of sexual assault and harassment by preventing them from publicly pursuing their claims in open court.

Notably, the Act is limited to claims involving sexual assault or harassment, and it does not apply to other forms of illegal harassment or discrimination, such as discrimination based on race, religion, age, nation origin, or disability.

Now may be a good time for employers to review their employment agreements and analyze whether including mandatory arbitration provisions therein makes sense. Davenport Evans attorneys are here to help answer any questions you have.

The employment law attorneys at Davenport Evans stand ready to help in this developing area of law. Contact us at [email protected], 605-336-2880, or find a specific lawyer here.

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Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the State’s largest law firms. The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas. For more information about Davenport Evans, visit www.dehs.com.