II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Ending Forced Arbi3 tration of Sexual Assault and Sexual Harassment Act of 

4 2021’’. 

5 SEC. 2. PREDISPUTE ARBITRATION OF DISPUTES INVOLV6 ING SEXUAL ASSAULT AND SEXUAL HARASS7 MENT. 

8 (a) IN GENERAL.—Title 9 of the United States Code 

9 is amended by adding at the end the following: 

10 ‘‘CHAPTER 4—ARBITRATION OF DISPUTES 

11 INVOLVING SEXUAL ASSAULT AND 

12 SEXUAL HARASSMENT 

‘‘Sec. 

‘‘401. Definitions. 

‘‘402. No validity or enforceability. 

13 ‘‘§ 401. Definitions 

14 ‘‘In this chapter: 

15 ‘‘(1) PREDISPUTE ARBITRATION AGREEMENT.— 

16 The term ‘predispute arbitration agreement’ means 

17 any agreement to arbitrate a dispute that had not 

18 yet arisen at the time of the making of the agree19 ment. 

20 ‘‘(2) PREDISPUTE JOINT-ACTION WAIVER.—The 

21 term ‘predispute joint-action waiver’ means an 

22 agreement, whether or not part of a predispute arbi23 tration agreement, that would prohibit, or waive the 

24 right of, one of the parties to the agreement to parVerDate Sep 11 2014 00:30 Nov 18, 2021 Jkt 029200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S2342.RS S2342

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1 ticipate in a joint, class, or collective action in a ju2 dicial, arbitral, administrative, or other forum, con3 cerning a dispute that has not yet arisen at the time 

4 of the making of the agreement. 

5 ‘‘(3) SEXUAL ASSAULT DISPUTE.—The term 

6 ‘sexual assault dispute’ means a dispute involving a 

7 nonconsensual sexual act or sexual contact, as such 

8 terms are defined in section 2246 of title 18 or simi9 lar applicable Tribal or State law, including when 

10 the victim lacks capacity to consent. 

11 ‘‘(4) SEXUAL HARASSMENT DISPUTE.—The 

12 term ‘sexual harassment dispute’ means a dispute 

13 relating to the any of the following conduct directed 

14 at an individual or a group of individuals: 

15 ‘‘(A) Unwelcome sexual advances. 

16 ‘‘(B) Unwanted physical contact that is 

17 sexual in nature, including assault. 

18 ‘‘(C) Unwanted sexual attention, including 

19 unwanted sexual comments and propositions for 

20 sexual activity. 

21 ‘‘(D) Conditioning professional, edu22 cational, consumer, health care or long-term 

23 care benefits on sexual activity. 

24 ‘‘(E) Retaliation for rejecting unwanted 

25 sexual attention. 


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1 ‘‘§ 402. No validity or enforceability 

2 ‘‘(a) IN GENERAL.—Except as provided in subsection 

3 (c), and notwithstanding any other provision of this title, 

4 no predispute arbitration agreement or predispute joint5 action waiver shall be valid or enforceable with respect to 

6 a case which is filed under Federal, Tribal, or State law 

7 and relates to a sexual assault dispute or a sexual harass8 ment dispute. 

9 ‘‘(b) DETERMINATION OF APPLICABILITY.—An issue 

10 as to whether this chapter applies with respect to a dispute 

11 shall be determined under Federal law. The applicability 

12 of this chapter to an agreement to arbitrate and the valid13 ity and enforceability of an agreement to which this chap14 ter applies shall be determined by a court, rather than 

15 an arbitrator, irrespective of whether the party resisting 

16 arbitration challenges the arbitration agreement specifi17 cally or in conjunction with other terms of the contract 

18 containing such agreement, and irrespective of whether 

19 the agreement purports to delegate such determinations 

20 to an arbitrator. 

21 ‘‘(c) EXCEPTION FOR COLLECTIVE BARGAINING

22 AGREEMENTS.—Nothing in this chapter shall apply to any 

23 arbitration provision in a contract between an employer 

24 and a labor organization or between labor organizations, 

25 except that no such arbitration provision shall have the 

26 effect of waiving the right of an employee to seek judicial 


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1 enforcement of a right arising under provision of the Con2 stitution of the United States, a State constitution, or a 

3 Federal or State statute, or public policy arising there4 from.’’. 

5 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

6 (1) IN GENERAL.—Title 9 of the United States 

7 Code is amended— 

8 (A) in section 2, by inserting ‘‘or as other9 wise provided in chapter 4’’ before the period at 

10 the end; 

11 (B) in section 208— 

12 (i) in the section heading, by striking 

13 ‘‘Chapter 1; residual application’’ 

14 and inserting ‘‘Application’’; and 

15 (ii) by adding at the end the fol16 lowing: ‘‘This chapter applies to the extent 

17 that this chapter is not in conflict with 

18 chapter 4.’’; and 

19 (C) in section 307— 

20 (i) in the section heading, by striking 

21 ‘‘Chapter 1; residual application’’ 

22 and inserting ‘‘Application’’; and 

23 (ii) by adding at the end the fol24 lowing: ‘‘This chapter applies to the extent 


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1 that this chapter is not in conflict with 

2 chapter 4.’’. 

3 (2) TABLE OF SECTIONS.— 

4 (A) CHAPTER 2.—The table of sections for 

5 chapter 2 of title 9, United States Code, is 

6 amended by striking the item relating to section 

7 208 and inserting the following: 

‘‘208. Application.’’. 

8 (B) CHAPTER 3.—The table of sections for 

9 chapter 3 of title 9, United States Code, is 

10 amended by striking the item relating to section 

11 307 and inserting the following: 

‘‘307. Application.’’. 

12 (3) TABLE OF CHAPTERS.—The table of chap13 ters for title 9, United States Code, is amended by 

14 adding at the end the following: 

‘‘4. Arbitration of disputes involving sexual assault and 

sexual harassment ................................................. 401’’. 

15 SEC. 3. APPLICABILITY. 

16 This Act, and the amendments made by this Act, 

17 shall apply with respect to any dispute or claim that arises 

18 or accrues on or after the date of enactment of this Act. 

19 SECTION 1. SHORT TITLE. 

20 This Act may be cited as the ‘‘Ending Forced Arbitra21 tion of Sexual Assault and Sexual Harassment Act of 

22 2021’’. 


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1 SEC. 2. PREDISPUTE ARBITRATION OF DISPUTES INVOLV2 ING SEXUAL ASSAULT AND SEXUAL HARASS3 MENT. 

4 (a) IN GENERAL.—Title 9 of the United States Code 

5 is amended by adding at the end the following: 

6 ‘‘CHAPTER 4—ARBITRATION OF DISPUTES 

7 INVOLVING SEXUAL ASSAULT AND 

8 SEXUAL HARASSMENT 

‘‘Sec. 

‘‘401. Definitions. 

‘‘402. No validity or enforceability. 

9 ‘‘§ 401. Definitions 

10 ‘‘In this chapter: 

11 ‘‘(1) PREDISPUTE ARBITRATION AGREEMENT.— 

12 The term ‘predispute arbitration agreement’ means 

13 any agreement to arbitrate a dispute that has not yet 

14 arisen at the time of the making of the agreement. 

15 ‘‘(2) PREDISPUTE JOINT-ACTION WAIVER.—The 

16 term ‘predispute joint-action waiver’ means an agree17 ment, whether or not part of a predispute arbitration 

18 agreement, that would prohibit, or waive the right of, 

19 one of the parties to the agreement to participate in 

20 a joint, class, or collective action in a judicial, arbi21 tral, administrative, or other forum, concerning a dis22 pute that has not yet arisen at the time of the making 

23 of the agreement. 


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1 ‘‘(3) SEXUAL ASSAULT DISPUTE.—The term ‘sex2 ual assault dispute’ means a dispute involving a non3 consensual sexual act or sexual contact, as such terms 

4 are defined in section 2246 of title 18 or similar ap5 plicable Tribal or State law, including when the vic6 tim lacks capacity to consent. 

7 ‘‘(4) SEXUAL HARASSMENT DISPUTE.—The term 

8 ‘sexual harassment dispute’ means a dispute relating 

9 to any of the following conduct directed at an indi10 vidual or a group of individuals: 

11 ‘‘(A) Unwelcome sexual advances. 

12 ‘‘(B) Unwanted physical contact that is sex13 ual in nature, including assault. 

14 ‘‘(C) Unwanted sexual attention, including 

15 unwanted sexual comments and propositions for 

16 sexual activity. 

17 ‘‘(D) Conditioning professional, edu18 cational, consumer, health care, or long-term 

19 care benefits on sexual activity. 

20 ‘‘(E) Retaliation for rejecting unwanted sex21 ual attention. 

22 ‘‘§ 402. No validity or enforceability 

23 ‘‘(a) IN GENERAL.—Notwithstanding any other provi24 sion of this title, at the election of the person alleging con25 duct constituting a sexual assault dispute or sexual harassVerDate Sep 11 2014 00:30 Nov 18, 2021 Jkt 029200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6203 E:\BILLS\S2342.RS S2342

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1 ment dispute, or the named representative of a class or in 

2 a collective action alleging such conduct, no predispute ar3 bitration agreement or predispute joint-action waiver shall 

4 be valid or enforceable with respect to a case which is filed 

5 under Federal, Tribal, or State law and relates to the sexual 

6 assault dispute or the sexual harassment dispute. 

7 ‘‘(b) DETERMINATION OF APPLICABILITY.—An issue as 

8 to whether this chapter applies with respect to a dispute 

9 shall be determined under Federal law. The applicability 

10 of this chapter to an agreement to arbitrate and the validity 

11 and enforceability of an agreement to which this chapter 

12 applies shall be determined by a court, rather than an arbi13 trator, irrespective of whether the party resisting arbitra14 tion challenges the arbitration agreement specifically or in 

15 conjunction with other terms of the contract containing 

16 such agreement, and irrespective of whether the agreement 

17 purports to delegate such determinations to an arbitrator.’’. 

18 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

19 (1) IN GENERAL.—Title 9 of the United States 

20 Code is amended— 

21 (A) in section 2, by inserting ‘‘or as other22 wise provided in chapter 4’’ before the period at 

23 the end; 

24 (B) in section 208— 


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1 (i) in the section heading, by striking 

2 ‘‘Chapter 1; residual application’’ 

3 and inserting ‘‘Application’’; and 

4 (ii) by adding at the end the following: 

5 ‘‘This chapter applies to the extent that this 

6 chapter is not in conflict with chapter 4.’’; 

7 and 

8 (C) in section 307— 

9 (i) in the section heading, by striking 

10 ‘‘Chapter 1; residual application’’ 

11 and inserting ‘‘Application’’; and 

12 (ii) by adding at the end the following: 

13 ‘‘This chapter applies to the extent that this 

14 chapter is not in conflict with chapter 4.’’. 

15 (2) TABLE OF SECTIONS.— 

16 (A) CHAPTER 2.—The table of sections for 

17 chapter 2 of title 9, United States Code, is 

18 amended by striking the item relating to section 

19 208 and inserting the following: 

‘‘208. Application.’’. 

20 (B) CHAPTER 3.—The table of sections for 

21 chapter 3 of title 9, United States Code, is 

22 amended by striking the item relating to section 

23 307 and inserting the following: 

‘‘307. Application.’’. 


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1 (3) TABLE OF CHAPTERS.—The table of chapters 

2 for title 9, United States Code, is amended by adding 

3 at the end the following: 

‘‘4. Arbitration of disputes involving sexual assault and 

sexual harassment .................................................... 401’’. 

4 SEC. 3. APPLICABILITY. 

5 This Act, and the amendments made by this Act, shall 

6 apply with respect to any dispute or claim that arises or 

7 accrues on or after the date of enactment of this Act. 


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Calendar No. 169 

117TH CONGRESS 

1ST SESSION S. 2342 

A BILL 

To amend title 9 of the United States Code with 

assault and sexual harassment. respect to arbitration of disputes involving sexual 

NOVEMBER 17, 2021 

Reported with an amendment 


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