It is all but certain that mandatory arbitration clauses will no longer exist for workplace sexual assault and sexual harassment claims once the expected legislation many refer to as the #MeToo Arbitration Ban is signed by President Biden. Stinson’s Labor, Employment & Benefits division reported on this bill in its Alert, Senate Passes #MeToo Bill Allowing Employees to Bypass Arbitration. While certain large government contracts have already included a similar prohibition on mandatory arbitration clauses for these types of claims, this soon to be law will apply to all employers, including all government contractors. Once signed into law, an employee will have the right to choose whether to go to court to pursue a workplace sexual assault or sexual harassment claim – even if the employee has previously agreed to binding arbitration of all claims as part of an employment agreement.
This development is an almost perfect example of a situation where an ounce of prevention is worth a pound of cure. The best way to avoid the challenges of having to litigate a sexual assault or sexual harassment claim against you as an employer is to have policies and procedures in place to minimize the risk of behavior that could lead to such claims, and a plan in place to address complaints internally as soon as they are made. Mandatory sexual harassment prevention training for both supervisory and non-supervisory employees, for example, should be a regular thing, not just once in a while. A process in place to report and address such complaints – with action required by your managers – is another.