New statute gives employees the option to make sexual harassment claims public record

New Statute Ends Mandatory Sexual Harassment Arbitration

Under a new federal statute, sexual harassment claims can now become a public record. In this blog, we discuss what this means for employees.

At Gardner Employment Law, we can give you the legal advice you need. We remain up to date on all legislation so our clients have every resource at their disposal. If you need assistance, let us know.

What Does H.R. 4445 Mean for Employees?

On February 10th, 2022, Congress passed H.R. 4445, titled “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.” This statute means sexual harassment claims can bypass mandatory arbitration and be handled in court. Previously, victims of sexual harassment were required to undergo arbitration. Arbitration is a form of private dispute resolution. This means both parties must resolve the dispute with a neutral arbitrator. Now, arbitration is not required for sexual harassment claims. This means victims can sue in federal, state, or tribal court.

Since sexually harassed people now have the option to sue, perpetrators risk their harassment becoming public record. In addition, companies can no longer sweep their sexual harassment cases under the rug. By giving employees the option between private arbitration or public court, employees have more agency over their situation.

These federal measures expand on sexual harassment legislation that was passed in Texas back in 2021. We detailed that bill in “Sexual Harassment at Work? Texas Expanded Your Protections.” From that bill, employees have a variety of new rights and legal remedies in Texas, such as:

  • Expanded legal liability to include employers who fail to take immediate and corrective action
  • Expanded legal liability to those who act as managers, directors, officers, contractors, and more instead of just the company as a whole
  • Increased the time that employees have to file a claim with the EEOC to 300 days, instead of 180

What Does H.R. 4445 Mean for My Arbitration Contract?

The new statute does not mean that existing arbitration contracts are automatically unenforceable. It simply means that the employee has the option to elect to invalidate the agreement. If the employee elects to challenge such an agreement, they must do so in a court of law. As H.R. 4445 says, “the validity and enforceability of an agreement to which this chapter applies shall be determined by a court.”

Keep in mind that this only applies to sexual harassment claims, and not any arbitration requirements for wage and hour claims, discrimination claims, or retaliation claims. Moreover, the sexual harassment claim must cohere with state, tribal, or federal laws.

The time period is also important to consider with these sexual harassment arbitration agreements. The dispute or claim must arise on or after H.R. 4445 was enacted, which means on or after February 10th, 2022. The new bill cannot apply “retroactively,” or to claims made before the bill was put in place.

What is a Sexual Harassment Claim in the Workplace?

In order to have a valid sexual harassment claim, there are a few facts you must prove, which we discuss in further depth on our Services page. This means proving:

  • Harassment towards a protected class, on the basis of sex or gender
  • The advances are offensive to the recipient (and would be to any reasonable person in the same situation)
  • The advances are unwelcomed
  • The advances are severe (such as rape) or pervasive (constant)

Once you have gathered all the evidence of your sexual harassment claim, your timing is crucial. In Texas, you must file your sexual harassment claim within 300 days of the incident. File even just a day after the 300 day deadline and your claim is automatically void.

Sexual harassment can be devastating to the recipient and create a hostile work environment. Filing a claim quickly and gathering all your evidence is crucial, that way you can ensure that your work environment is safe and free of harassment. 

Reach Out to Us

The details of arbitration agreements and sexual harassment claims can be expansive and hard to navigate. Don’t delay, give us a phone call so we can discuss how recent sexual harassment legislation affects you.

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