Forced Arbitration in Sexual Assault/Harassment Cases

Congress completed consideration and passed the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (February 10, 2022). The legislation bans arbitration agreements that preclude a party from filing a lawsuit in court involving sexual assault or sexual harassment, at the election of the party alleging such conduct. Proponents argue that employees should not have to give up their right to file such lawsuits, sometimes via class action, merely because they had to sign an employment contract that requires them to use arbitration processes.

The President signed the legislation into law on March 3, 2022.

(updated: 3-3-22)

_________________________

Biden Administration Executive Orders

The Biden Administration issued an EO on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (EO 13988). Among other things, the EO:

• States that it is the policy of the Administration to prevent/combat discrimination on the basis of gender identity or sexual orientation, and that the Administration intends to "fully enforce" laws that prohibit discrimination on the basis of gender identity or sexual orientation.

• Requests that all Federal agencies review all existing orders, regulations, guidance, etc., that relate to agency compliance with the stated policy, and suspend/revise these where there are any inconsistencies.

The Administration issued an EO (EO 14035) (June 25, 2021) focused specifically on advancing diversity and preventing discrimination within the Federal Government workforce. Among other things, the EO:

• Calls for development of a government-wide and agency specific Diversity, Equity, Inclusion, and Accessibility Initiative and Strategic Plans, along with results reporting. The Government-wide plan was released on November 23, 2021.

• Requires government-wide guidance to foster increases in the availability of paid internships, at the same time expanding outreach to underserved communities.

• Requires a government-wide initiative to strengthen employment partnerships with organizations serving underserved populations.

• Requires tracking and specific reporting of employee professional development and advancement.

(updated: 2-2-22)

_________________________

Pay Equity

The House passed the Paycheck Fairness Act - H.R. 7 (April 15, 2021), which is intended to address wage discrimination on the basis of sex, to include pregnancy, sexual orientation, gender identity, and sex characteristics. Among other things, the legislation:

• Limits an employer's defense that a pay differential is based on a factor other than sex to only bona fide job-related factors in wage discrimination claims.

• Enhances non-retaliation prohibitions, and makes it unlawful to require an employee to sign a contract or waiver prohibiting the employee from disclosing information about the employee's wages.

• Increases civil penalties for violations of equal pay provisions.

There is no indication that the Senate will consider this legislation during the current (117th) Congress.

(updated: 2-2-22)

_________________________