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[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
```