Thought Leadership

Federal and State Governments are Heightening Expectations for Employers in Sexual Assault and Sexual Harassment Disputes

Federal and state lawmakers are continuing their efforts to combat sexual misconduct in the workplace in the wake of the #MeToo movement.  Like many states, Texas recently enacted a series of new laws that drastically expand liability for workplace sexual harassment.  As we discussed in a recent webinar, these new laws apply to all employers, impose heightened standards for responding to known or suspected sexual harassment, increase the deadline for filing sexual harassment claims, and even provide for individual liability—a particularly significant departure from both Title VII and prior state law.

At the federal level, Congress recently passed legislation prohibiting employers from enforcing pre-dispute arbitration agreements or class action waivers relating to sexual assault or harassment disputes, at the election of the person (or class representative) alleging the sexual misconduct at issue.  The House of Representatives passed the bill (H.R.4445)—known as the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021—on February 7, 2022, followed by the Senate on February 10th (S.2342).  The White House has indicated that President Biden intends to sign the bill into law.  The White House also issued a Statement of Administration Policy on February 1, 2022, indicating the President’s support of the bill, and describing it as a prelude to “broader legislation” prohibiting forced arbitrations of claims based on race, wage theft, or unfair labor practices.

Of note, the bill applies to sexual assault or harassment disputes filed under Federal, State, or Tribal Law.  It defines “sexual assault dispute” to include disputes “involving a nonconsensual sexual act or sexual conduct . . . including when the victim lacks capacity to consent.”  The term “sexual harassment dispute” is defined to include disputes involving (1) unwelcome sexual advances; (2) unwanted physical contact that is sexual in nature, including assault; (3) unwelcome sexual attention, including unwanted sexual comments and propositions for sexual activity; (4) quid pro quo harassment, i.e., conditioning professional, educational, consumer, health care, or long-term care benefits on sexual activity; and (5) retaliation for rejecting unwanted sexual attention.

Assuming the bill is signed, it will take effect immediately and will even apply to pre-dispute agreements already in existence.  However, the bill only applies in the context of sexual harassment and sexual assault claims—it does not apply to pre-dispute arbitration agreements or class-action waivers relating to other forms of sex-based discrimination, or non-sex-based discrimination or harassment.

Now is the time for all employers—including school districts, colleges, and universities—to review their sexual harassment policies and procedures, and conduct training to address the ever-changing legal landscape relating to workplace sexual harassment.

If you have any questions about this legislation, or your obligations under state law—including the recent legislative changes relating to workplace sexual harassment claims under Texas law—please contact Stephanie Hamm or Jackie Gharapour Wernz