[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3143 Introduced in Senate (IS)]
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117th CONGRESS
1st Session
S. 3143
To amend title 9 of the United States Code to prohibit the enforcement
of predispute arbitration agreements with respect to claims of sexual
assault and to ensure that fair procedures are used in arbitrations
involving sexual harassment claims.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 2, 2021
Ms. Ernst introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend title 9 of the United States Code to prohibit the enforcement
of predispute arbitration agreements with respect to claims of sexual
assault and to ensure that fair procedures are used in arbitrations
involving sexual harassment claims.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Resolving Sexual Assault and
Harassment Disputes Act of 2021''.
SEC. 2. ARBITRATION OF SEXUAL ASSAULT AND SEXUAL HARASSMENT CLAIMS.
(a) In General.--Title 9 of the United States Code is amended by
adding at the end the following:
``CHAPTER 4--ARBITRATION OF SEXUAL ASSAULT CLAIMS; RIGHTS IN
ARBITRATION OF SEXUAL HARASSMENT CLAIMS
``SEC. 401. DEFINITIONS.
``In this chapter--
``(1) the term `predispute arbitration agreement' means any
agreement to arbitrate a claim that had not yet arisen at the
time of the making of the agreement;
``(2) the term `sexual assault' means a nonconsensual
sexual act or sexual contact (as those terms are defined in
section 2246 of title 18, or similar applicable State or Tribal
law) perpetrated against an employee, including when the victim
lacks capacity to consent;
``(3) the term `sexual assault claim' means a claim or
dispute by an employee alleging that he or she was the victim
of a sexual assault, based on alleged conduct that meets the
definition of a sexual assault, brought by the employee against
the employer, the employer and one or more employees, or one or
more employees;
``(4) the term `sexual harassment' means--
``(A)(i) an unwelcome sexual advance;
``(ii) a request for a sexual favor;
``(iii) an offensive remark about a person's sex;
or
``(iv) any other verbal or physical harassment of a
sexual nature; and
``(B) that is so frequent or severe that it creates
a hostile or offensive work environment or results in
an adverse employment decision; and
``(5) the term `sexual harassment claim' means a claim or
dispute between an employee and employer, or among an employee,
employer, and one or more employees, arising out of allegations
of conduct that constitutes sexual harassment but does not fall
within the definition of a sexual assault claim.
``SEC. 402. LIMIT ON VALIDITY AND ENFORCEABILITY.
``(a) In General.--Notwithstanding any other provision of this
title, a predispute arbitration agreement shall have no force or effect
with respect to a sexual assault claim.
``(b) Other Claims.--All claims other than those subject to
subsection (a) shall be subject to the provisions of this title,
provided that, for sexual harassment claims, section 403 is satisfied.
``SEC. 403. RIGHTS IN ARBITRATION OF SEXUAL HARASSMENT CLAIM.
``(a) In General.--Notwithstanding any other provision of this
title, a predispute arbitration agreement to which this chapter applies
shall be valid or enforceable with respect to a sexual harassment claim
if the predispute arbitration agreement--
``(1) allows a party to discuss publicly the claim to be
arbitrated, unless both parties mutually agree otherwise after
the claim has arisen, and subject to reasonable restrictions
necessary to safeguard the privacy interests of third parties;
``(2) allows a party to report alleged violations of law to
local, State, and Federal civil and criminal law enforcement
authorities;
``(3) allows a party to discuss publicly the arbitrator's
decision, unless the parties mutually agree otherwise after the
claim has arisen;
``(4) allows the arbitrator to grant a party's reasonable
request to engage in third-party discovery, including the
ability to solicit evidence from other individuals or entities
not parties to the arbitration;
``(5) allows a party to be represented by a lawyer in the
arbitration proceeding;
``(6) provides for the appointment of an arbitrator who is
impartial and obligated to disclose any bias, personal or
financial interest in the arbitration, and past or present
relationships with the parties or their representatives;
``(7) provides for the ability of the parties to receive a
reasoned, written decision by the arbitrator;
``(8) if the agreement provides for a statute of
limitations it is no shorter than the statute of limitations
under the law applicable to the claim;
``(9) allows the claimant to recover individualized damages
and other individualized relief authorized by the law
applicable to the claim;
``(10) does not require the claimant to pay attorneys' fees
or expenses not authorized by the law applicable to the claim;
and
``(11) does not require the claimant to pay arbitration
fees greater than the filing fee for an action in Federal
district court established by section 1914 of title 28, unless
the arbitrator finds that the claimant's claims are frivolous
or brought for an improper purpose (as measured by the
standards of Federal Rule of Civil Procedure 11(b)) or the
claimant's litigation conduct is vexatious (as measured by the
standards of section 1927 of title 28).
``(b) Considerations.--In determining whether an arbitration
agreement satisfies the standard set forth in subsection (a)(4), a
court shall consider--
``(1) a claimant's ability to obtain relevant evidence;
``(2) privacy interests of the claimant and third parties;
and
``(3) whether the potential burdens that third-party
discovery might impose are proportionate to the needs of the
case.
``(c) Rule of Construction.--A predispute arbitration agreement
complies with subsection (a) if the agreement does not prohibit the
conduct, the agreement affirmatively permits the conduct, or the rules
of the arbitral forum selected in the agreement satisfy the
requirement.
``SEC. 404. ATTORNEYS' FEES FOR SEXUAL ASSAULT AND HARASSMENT CLAIMS.
``(a) Fee Distribution Timing.--If the plaintiff in a civil action
or arbitration proceeding is seeking monetary relief with respect to a
sexual assault claim or a sexual harassment claim, there shall be a
final determination, including exhaustion of appeals, of any monetary
relief to be paid to the plaintiff, and payment to the plaintiff,
before the determination or payment of costs or attorneys' fees to the
attorney for the plaintiff.
``(b) Fee Determinations Based on Monetary Relief.--Unless
otherwise specified by Federal statute, if a judgment or settlement
agreement in a civil action or arbitration proceeding provides monetary
relief to the plaintiff with respect to a sexual assault claim or a
sexual harassment claim, the portion of any attorneys' fees paid to the
attorney for the plaintiff that is attributable to the monetary relief
with respect to that claim--
``(1) shall not exceed a reasonable percentage of the
amount of monetary relief directly distributed to and received
by the plaintiff with respect to the claim; and
``(2) in any event, shall not exceed the total amount of
monetary relief directly distributed to and received by the
plaintiff with respect to the claim.
``(c) Fee Determinations Based on Equitable Relief.--Unless
otherwise specified by Federal statute, if a judgment or settlement
agreement in a civil action or arbitration proceeding provides for
equitable relief with respect to a sexual assault claim or a sexual
harassment claim, the portion of any attorneys' fees paid to the
attorney for the plaintiff that is attributable to the equitable relief
with respect to the claim shall not exceed a reasonable percentage of
the value of the equitable relief, including any injunctive relief.
``SEC. 405. STUDY.
``Two years after the date of enactment of this chapter, the
Comptroller General of the United States shall conduct a study of, and
shall provide a report to the relevant congressional committees,
including the Committee on the Judiciary of the Senate and the
Committee on the Judiciary of the House of Representatives, the use of
arbitration agreements in connection with this chapter. The study shall
examine the total number of claims, the length of time to resolve a
claim, party success rates, awards and settlement amounts, attorney's
fees, and the validity of arbitration clauses challenged according to
section 406. The study shall examine both arbitration proceedings and
settlement agreements, to the extent possible, pursuant to this chapter
and compare the outcomes, the duration, and award and settlement
amounts with other employment cases in the judicial system.
``SEC. 406. APPLICABILITY.
``An issue as to whether this chapter applies with respect to a
sexual assault claim or a sexual harassment claim shall be determined
under Federal law. The applicability of this chapter to a predispute
agreement to arbitrate such claims and the validity and enforceability
of a predispute 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 predispute
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. In the instance when a court finds a predispute arbitration
agreement invalid in accordance with this chapter, the employee or
employees shall be awarded a reasonable attorney's fee, including
litigation expenses, and costs for challenging the predispute
arbitration agreement.''.
(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 sexual assault claims; rights in 401''.
arbitration of sexual harassment
claims.
SEC. 3. PROSPECTIVE EFFECT.
This Act, and the amendments made by this Act, shall take effect on
the date of enactment of this Act and shall apply with respect to any
predispute arbitration agreement that is entered into or amended on or
after such date.
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