[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 2342 Reported in Senate (RS)]
<DOC>
Calendar No. 169
117th CONGRESS
1st Session
S. 2342
To amend title 9 of the United States Code with respect to arbitration
of disputes involving sexual assault and sexual harassment.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 14, 2021
Mrs. Gillibrand (for herself, Mr. Graham, Mr. Durbin, Mr. Whitehouse,
Mrs. Blackburn, Mr. Blumenthal, Ms. Murkowski, Mrs. Feinstein, Mr.
Coons, Mr. Kennedy, Mr. Leahy, Mr. Booker, Mr. Padilla, Mr. Ossoff, Mr.
Hawley, Ms. Hirono, Mr. Grassley, and Mrs. Capito) introduced the
following bill; which was read twice and referred to the Committee on
the Judiciary
November 17, 2021
Reported by Mr. Durbin, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To amend title 9 of the United States Code with respect to arbitration
of disputes involving sexual assault and sexual harassment.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Ending Forced Arbitration
of Sexual Assault and Sexual Harassment Act of 2021''.</DELETED>
<DELETED>SEC. 2. PREDISPUTE ARBITRATION OF DISPUTES INVOLVING SEXUAL
ASSAULT AND SEXUAL HARASSMENT.</DELETED>
<DELETED> (a) In General.--Title 9 of the United States Code is
amended by adding at the end the following:</DELETED>
<DELETED>``CHAPTER 4--ARBITRATION OF DISPUTES INVOLVING SEXUAL ASSAULT
AND SEXUAL HARASSMENT</DELETED>
<DELETED>``Sec.
<DELETED>``401. Definitions.
<DELETED>``402. No validity or enforceability.
<DELETED>``Sec. 401. Definitions</DELETED>
<DELETED> ``In this chapter:</DELETED>
<DELETED> ``(1) Predispute arbitration agreement.--The term
`predispute arbitration agreement' means any agreement to
arbitrate a dispute that had not yet arisen at the time of the
making of the agreement.</DELETED>
<DELETED> ``(2) Predispute joint-action waiver.--The term
`predispute joint-action waiver' means an agreement, whether or
not part of a predispute arbitration agreement, that would
prohibit, or waive the right of, one of the parties to the
agreement to participate in a joint, class, or collective
action in a judicial, arbitral, administrative, or other forum,
concerning a dispute that has not yet arisen at the time of the
making of the agreement.</DELETED>
<DELETED> ``(3) Sexual assault dispute.--The term `sexual
assault dispute' means a dispute involving a nonconsensual
sexual act or sexual contact, as such terms are defined in
section 2246 of title 18 or similar applicable Tribal or State
law, including when the victim lacks capacity to
consent.</DELETED>
<DELETED> ``(4) Sexual harassment dispute.--The term `sexual
harassment dispute' means a dispute relating to the any of the
following conduct directed at an individual or a group of
individuals:</DELETED>
<DELETED> ``(A) Unwelcome sexual advances.</DELETED>
<DELETED> ``(B) Unwanted physical contact that is
sexual in nature, including assault.</DELETED>
<DELETED> ``(C) Unwanted sexual attention, including
unwanted sexual comments and propositions for sexual
activity.</DELETED>
<DELETED> ``(D) Conditioning professional,
educational, consumer, health care or long-term care
benefits on sexual activity.</DELETED>
<DELETED> ``(E) Retaliation for rejecting unwanted
sexual attention.</DELETED>
<DELETED>``Sec. 402. No validity or enforceability</DELETED>
<DELETED> ``(a) In General.--Except as provided in subsection (c),
and notwithstanding any other provision of this title, no predispute
arbitration agreement or predispute joint-action waiver shall be valid
or enforceable with respect to a case which is filed under Federal,
Tribal, or State law and relates to a sexual assault dispute or a
sexual harassment dispute.</DELETED>
<DELETED> ``(b) Determination of Applicability.--An issue as to
whether this chapter applies with respect to a dispute shall be
determined under Federal law. The applicability of this chapter to an
agreement to arbitrate and the validity and enforceability of an
agreement to which this chapter applies shall be determined by a court,
rather than an arbitrator, irrespective of whether the party resisting
arbitration challenges the arbitration agreement specifically or in
conjunction with other terms of the contract containing such agreement,
and irrespective of whether the agreement purports to delegate such
determinations to an arbitrator.</DELETED>
<DELETED> ``(c) Exception for Collective Bargaining Agreements.--
Nothing in this chapter shall apply to any arbitration provision in a
contract between an employer and a labor organization or between labor
organizations, except that no such arbitration provision shall have the
effect of waiving the right of an employee to seek judicial enforcement
of a right arising under provision of the Constitution of the United
States, a State constitution, or a Federal or State statute, or public
policy arising therefrom.''.</DELETED>
<DELETED> (b) Technical and Conforming Amendments.--</DELETED>
<DELETED> (1) In general.--Title 9 of the United States Code
is amended--</DELETED>
<DELETED> (A) in section 2, by inserting ``or as
otherwise provided in chapter 4'' before the period at
the end;</DELETED>
<DELETED> (B) in section 208--</DELETED>
<DELETED> (i) in the section heading, by
striking ``Chapter 1; residual application''
and inserting ``Application''; and</DELETED>
<DELETED> (ii) by adding at the end the
following: ``This chapter applies to the extent
that this chapter is not in conflict with
chapter 4.''; and</DELETED>
<DELETED> (C) in section 307--</DELETED>
<DELETED> (i) in the section heading, by
striking ``Chapter 1; residual application''
and inserting ``Application''; and</DELETED>
<DELETED> (ii) by adding at the end the
following: ``This chapter applies to the extent
that this chapter is not in conflict with
chapter 4.''.</DELETED>
<DELETED> (2) Table of sections.--</DELETED>
<DELETED> (A) Chapter 2.--The table of sections for
chapter 2 of title 9, United States Code, is amended by
striking the item relating to section 208 and inserting
the following:</DELETED>
<DELETED>``208. Application.''.
<DELETED> (B) Chapter 3.--The table of sections for
chapter 3 of title 9, United States Code, is amended by
striking the item relating to section 307 and inserting
the following:</DELETED>
<DELETED>``307. Application.''.
<DELETED> (3) Table of chapters.--The table of chapters for
title 9, United States Code, is amended by adding at the end
the following:</DELETED>
<DELETED>``4. Arbitration of disputes involving sexual 401''.
assault and sexual harassment.
<DELETED>SEC. 3. APPLICABILITY.</DELETED>
<DELETED> This Act, and the amendments made by this Act, shall apply
with respect to any dispute or claim that arises or accrues on or after
the date of enactment of this Act.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ending Forced Arbitration of Sexual
Assault and Sexual Harassment Act of 2021''.
SEC. 2. PREDISPUTE ARBITRATION OF DISPUTES INVOLVING SEXUAL ASSAULT AND
SEXUAL HARASSMENT.
(a) In General.--Title 9 of the United States Code is amended by
adding at the end the following:
``CHAPTER 4--ARBITRATION OF DISPUTES INVOLVING SEXUAL ASSAULT AND
SEXUAL HARASSMENT
``Sec.
``401. Definitions.
``402. No validity or enforceability.
``Sec. 401. Definitions
``In this chapter:
``(1) Predispute arbitration agreement.--The term
`predispute arbitration agreement' means any agreement to
arbitrate a dispute that has not yet arisen at the time of the
making of the agreement.
``(2) Predispute joint-action waiver.--The term `predispute
joint-action waiver' means an agreement, whether or not part of
a predispute arbitration agreement, that would prohibit, or
waive the right of, one of the parties to the agreement to
participate in a joint, class, or collective action in a
judicial, arbitral, administrative, or other forum, concerning
a dispute that has not yet arisen at the time of the making of
the agreement.
``(3) Sexual assault dispute.--The term `sexual assault
dispute' means a dispute involving a nonconsensual sexual act
or sexual contact, as such terms are defined in section 2246 of
title 18 or similar applicable Tribal or State law, including
when the victim lacks capacity to consent.
``(4) Sexual harassment dispute.--The term `sexual
harassment dispute' means a dispute relating to any of the
following conduct directed at an individual or a group of
individuals:
``(A) Unwelcome sexual advances.
``(B) Unwanted physical contact that is sexual in
nature, including assault.
``(C) Unwanted sexual attention, including unwanted
sexual comments and propositions for sexual activity.
``(D) Conditioning professional, educational,
consumer, health care, or long-term care benefits on
sexual activity.
``(E) Retaliation for rejecting unwanted sexual
attention.
``Sec. 402. No validity or enforceability
``(a) In General.--Notwithstanding any other provision of this
title, at the election of the person alleging conduct constituting a
sexual assault dispute or sexual harassment dispute, or the named
representative of a class or in a collective action alleging such
conduct, no predispute arbitration agreement or predispute joint-action
waiver shall be valid or enforceable with respect to a case which is
filed under Federal, Tribal, or State law and relates to the sexual
assault dispute or the sexual harassment dispute.
``(b) Determination of Applicability.--An issue as to whether this
chapter applies with respect to a dispute shall be determined under
Federal law. The applicability of this chapter to an agreement to
arbitrate and the validity and enforceability of an agreement to which
this chapter applies shall be determined by a court, rather than an
arbitrator, irrespective of whether the party resisting arbitration
challenges the arbitration agreement specifically or in conjunction
with other terms of the contract containing such agreement, and
irrespective of whether the agreement purports to delegate such
determinations to an arbitrator.''.
(b) Technical and Conforming Amendments.--
(1) In general.--Title 9 of the United States Code is
amended--
(A) in section 2, by inserting ``or as otherwise
provided in chapter 4'' before the period at the end;
(B) in section 208--
(i) in the section heading, by striking
``Chapter 1; residual application'' and
inserting ``Application''; and
(ii) by adding at the end the following:
``This chapter applies to the extent that this
chapter is not in conflict with chapter 4.'';
and
(C) in section 307--
(i) in the section heading, by striking
``Chapter 1; residual application'' and
inserting ``Application''; and
(ii) by adding at the end the following:
``This chapter applies to the extent that this
chapter is not in conflict with chapter 4.''.
(2) Table of sections.--
(A) Chapter 2.--The table of sections for chapter 2
of title 9, United States Code, is amended by striking
the item relating to section 208 and inserting the
following:
``208. Application.''.
(B) Chapter 3.--The table of sections for chapter 3
of title 9, United States Code, is amended by striking
the item relating to section 307 and inserting the
following:
``307. Application.''.
(3) Table of chapters.--The table of chapters for title 9,
United States Code, is amended by adding at the end the
following:
``4. Arbitration of disputes involving sexual assault and 401''.
sexual harassment.
SEC. 3. APPLICABILITY.
This Act, and the amendments made by this Act, shall apply with
respect to any dispute or claim that arises or accrues on or after the
date of enactment of this Act.
Calendar No. 169
117th CONGRESS
1st Session
S. 2342
_______________________________________________________________________
A BILL
To amend title 9 of the United States Code with respect to arbitration
of disputes involving sexual assault and sexual harassment.
_______________________________________________________________________
November 17, 2021
Reported with an amendment