#MeToo’s Landmark, Yet Flawed, Impact on Dispute Resolution: The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

43 Pages Posted: 11 Jul 2022 Last revised: 6 Jun 2023

See all articles by Imre S. Szalai

Imre S. Szalai

Loyola University New Orleans College of Law

Date Written: June 27, 2022

Abstract

On March 3, 2022, President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Amendment”) into law. This Amendment is the most significant change in the last several decades to the Federal Arbitration Act (the “FAA”), the main federal law governing arbitration since 1925. This landmark Amendment is also the most important federal legislation to arise thus far from the #MeToo movement. In a nutshell, the Amendment generally invalidates predispute arbitration agreements in cases involving sexual harassment or sexual assault, and the Amendment thereby allows victims to proceed with their claims in public court with more robust procedural protections. With hundreds of millions of arbitration agreements in place covering consumers and workers, the Amendment can have an impact on access to justice and shape how certain disputes are resolved.

While the goals of the Amendment are certainly laudable, the Amendment unfortunately suffers from several problems. Among other issues, the Amendment is poorly drafted, with at least three different interpretations concerning the scope of the Amendment, and it is uncertain whether the Amendment applies in the labor setting with collective bargaining agreements. The Amendment may also be unconstitutional as applied in certain settings involving state courts and state tort claims. The Amendment also raises several deeper questions about the regulation of arbitration and proper role of arbitration in society. This Article clarifies some of the confusion regarding the Amendment and suggests future reforms for arbitration law.

Keywords: Federal Arbitration Act, arbitration, dispute resolution, #MeToo, sexual assault, sexual harassment

Suggested Citation

Szalai, Imre S., #MeToo’s Landmark, Yet Flawed, Impact on Dispute Resolution: The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (June 27, 2022). Northwestern Journal of Law and Social Policy, Forthcoming, Loyola University New Orleans College of Law Research Paper No. 2023-10, Available at SSRN: https://ssrn.com/abstract=4147981

Imre S. Szalai (Contact Author)

Loyola University New Orleans College of Law ( email )

7214 St. Charles Ave., Box 901
Campus Box 901
New Orleans, LA 70118
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
198
Abstract Views
650
Rank
272,356
PlumX Metrics