II
Calendar No. 169
117th CONGRESS
1st Session
S. 2342
IN THE SENATE OF THE UNITED STATES
July 14, 2021
Mrs. Gillibrand (for herself, Mr. Graham, Mr. Durbin, Mr. Whitehouse, Mrs. Blackburn, Mr. Blumenthal, Ms. Murkowski, Mrs. Feinstein, Mr. Coons, Mr. Kennedy, Mr. Leahy, Mr. Booker, Mr. Padilla, Mr. Ossoff, Mr. Hawley, Ms. Hirono, Mr. Grassley, and Mrs. Capito) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
November 17, 2021
Reported by Mr. Durbin, with an amendment
Strike out all after the enacting clause and insert the part printed in italic
A BILL
To amend title 9 of the United States Code with respect to arbitration of disputes involving sexual assault and sexual harassment.
Short title
This Act may be cited as the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021
.
Predispute arbitration of disputes involving sexual assault and sexual harassment
In general
Title 9 of the United States Code is amended by adding at the end the following:
Arbitration of disputes involving sexual assault and sexual harassment
Sec.
401. Definitions.
402. No validity or enforceability.
Definitions
In this chapter:
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.
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.
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.
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:
Unwelcome sexual advances.
Unwanted physical contact that is sexual in nature, including assault.
Unwanted sexual attention, including unwanted sexual comments and propositions for sexual activity.
Conditioning professional, educational, consumer, health care or long-term care benefits on sexual activity.
Retaliation for rejecting unwanted sexual attention.
No validity or enforceability
In general
Except as provided in subsection (c), and notwithstanding any other provision of this title, 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 a sexual assault dispute or a sexual harassment dispute.
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.
Exception for collective bargaining agreements
Nothing in this chapter shall apply to any arbitration provision in a contract between an employer and a labor organization or between labor organizations, except that no such arbitration provision shall have the effect of waiving the right of an employee to seek judicial enforcement of a right arising under provision of the Constitution of the United States, a State constitution, or a Federal or State statute, or public policy arising therefrom.
.
Technical and conforming amendments
In general
Title 9 of the United States Code is amended—
in section 2, by inserting or as otherwise provided in chapter 4
before the period at the end;
in section 208—
in the section heading, by striking Chapter 1; residual application
and inserting Application
; and
by adding at the end the following: This chapter applies to the extent that this chapter is not in conflict with chapter 4.
; and
in section 307—
in the section heading, by striking Chapter 1; residual application
and inserting Application
; and
by adding at the end the following: This chapter applies to the extent that this chapter is not in conflict with chapter 4.
.
Table of sections
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.
.
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.
.
Table of chapters
The table of chapters for title 9, United States Code, is amended by adding at the end the following:
.
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.
Short title
This Act may be cited as the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021
.
Predispute arbitration of disputes involving sexual assault and sexual harassment
In general
Title 9 of the United States Code is amended by adding at the end the following:
Arbitration of disputes involving sexual assault and sexual harassment
Sec.
401. Definitions.
402. No validity or enforceability.
Definitions
In this chapter:
Predispute arbitration agreement
The term predispute arbitration agreement means any agreement to arbitrate a dispute that has not yet arisen at the time of the making of the agreement.
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.
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.
Sexual harassment dispute
The term sexual harassment dispute means a dispute relating to any of the following conduct directed at an individual or a group of individuals:
Unwelcome sexual advances.
Unwanted physical contact that is sexual in nature, including assault.
Unwanted sexual attention, including unwanted sexual comments and propositions for sexual activity.
Conditioning professional, educational, consumer, health care, or long-term care benefits on sexual activity.
Retaliation for rejecting unwanted sexual attention.
No validity or enforceability
In general
Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual assault dispute or sexual harassment 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.
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.
.
Technical and conforming amendments
In general
Title 9 of the United States Code is amended—
in section 2, by inserting or as otherwise provided in chapter 4
before the period at the end;
in section 208—
in the section heading, by striking Chapter 1; residual application
and inserting Application
; and
by adding at the end the following: This chapter applies to the extent that this chapter is not in conflict with chapter 4.
; and
in section 307—
in the section heading, by striking Chapter 1; residual application
and inserting Application
; and
by adding at the end the following: This chapter applies to the extent that this chapter is not in conflict with chapter 4.
.
Table of sections
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.
.
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.
.
Table of chapters
The table of chapters for title 9, United States Code, is amended by adding at the end the following:
.
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.
November 17, 2021
Reported with an amendment