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Cardozo Journal of Conflict Resolution

Abstract

On March 3, 2022, Congress enacted the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, codified as Chapter 4 of the Federal Arbitration Act (FAA). Chapter 4 is the first time that Congress has restricted the scope of the FAA in 100 years, by rendering invalid and unenforceable, at the election of a plaintiff, pre-dispute arbitration agreements in cases relating to sexual assault or sexual harassment disputes. This Article presents the results of a detailed qualitative and quantitative study of 180 state and federal court decisions interpreting Chapter 4, designed to evaluate its actual impact on the enforcement of arbitration agreements. The Article concludes that Chapter 4 has not been applied consistently nationwide. Instead, courts have diverged on a number of important issues surrounding its interpretation, and cases with diametrically opposed outcomes have already reached the state and federal courts of appeals as well as the doorstep of the Supreme Court. As a result, there is lingering uncertainty as to precisely which disputes are excluded from arbitration, which undermines both the purported legislative goal of keeping sexual assault and harassment disputes out of arbitration at the election of a plaintiff and one of the overarching objectives of the FAA—national uniformity in the enforcement of arbitration agreements. The Article concludes by offering preliminary observations and suggestions as to how the judicial disagreements concerning Chapter 4 may be resolved to achieve a more consistent application of its provisions.

Keywords

Federal Arbitration Act, Forced Arbitration, Sexual Harassment, Sexual Assault, Alternative Dispute Resolution, Arbitration Agreements, Access to Justice, Empirical Legal Research, Judicial Interpretation, Procedural Uniformity

Disciplines

Dispute Resolution and Arbitration | Law

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