Legislation Extending "Ending Forced Arbitration Act" To Include Race-Based Claims S.1408 and H.R. 4445

President Biden signs bill ending forced arbitration in sexual misconduct cases in March of 2022.

Congress is looking to expand the Speak Out Act to include race-based claims on May 2, 2023, Senator Cory A. Booker and Congressperson Hank Johnson introduced the "Ending Forced Arbitration of Race Discrimination Act" (S.1408 and H.R.4445). While the pace of legislation has slowed since the midterms elections, we have seen bipartisan legislation of this nature pass during this administration, and I would not count out an extension on the arbitration prohibition. Below details the amendments to the present Ending Enforced Arbitration Act that S.1408 proposes. The bill to amend title 9, United States Code, with respect to arbitration of disputes involving race discrimination was sent to the Committee on the Judiciary and is cosponsored by Sens. Kirsten Gillibrand, D-N.Y., and Richard J. Durbin, D-Ill.

Employer's Reaction
Due to the federal and state law trends to protect victims of sexual harassment and sexual assault, employers who include non-disparagement and non-disclosure provisions in employment agreements, confidentiality agreements, and separation or settlement agreements should carefully review such documents to ensure compliance with applicable state and/or federal law.

Other Arbitration Laws

Virginia, California and Washington recently passed what is termed as the "Silenced No More Act," extending prohibitions on confidentiality clauses in cases of sexual assault/harassment. Laws to include race-based claims are in effect in California and Washington. 

California

California's SB 331, known as the Silenced No More Act, is broader than the federal act. SB 331 prohibits confidentiality provisions in settlement and separation agreements involving claims of workplace harassment or discrimination on any protected basis, not just those based on sexual assault and sexual harassment. 

SB 331 prohibits employers from including non-disparagement provisions that ban employees from disclosing information about any type of harassment or discrimination or other conduct that an employee reasonably believes is unlawful, in exchange for a promotion, bonus, or continued employment, unless the agreements include specific carveout language. Lastly, SB 331 is not limited to pre-dispute agreements, and expressly applies to settlement and separation agreements, which are not impacted by the federal act.