II 

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, and Mr. DURBIN) 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 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, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Ending Forced Arbi5 tration of Sexual Assault and Sexual Harassment Act of 

6 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 had not 

14 yet arisen at the time of the making of the agree15 ment. 

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

17 term ‘predispute joint-action waiver’ means an 

18 agreement, whether or not part of a predispute arbi19 tration agreement, that would prohibit, or waive the 

20 right of, one of the parties to the agreement to par21 ticipate in a joint, class, or collective action in a ju22 dicial, arbitral, administrative, or other forum, con23 cerning a dispute that has not yet arisen at the time 

24 of the making of the agreement. 


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

2 ‘sexual assault dispute’ means a dispute involving a 

3 nonconsensual sexual act or sexual contact, as such 

4 terms are defined in section 2246 of title 18 or simi5 lar applicable Tribal or State law, including when 

6 the victim lacks capacity to consent. 

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

8 term ‘sexual harassment dispute’ means a dispute 

9 relating to the any of the following conduct directed 

10 at an individual or a group of individuals: 

11 ‘‘(A) Unwelcome sexual advances. 

12 ‘‘(B) Unwanted physical contact that is 

13 sexual 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 

21 sexual attention. 

22 ‘‘§ 402. No validity or enforceability 

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

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

25 no predispute arbitration agreement or predispute jointVerDate Sep 11 2014 05:12 Jul 16, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2342.IS S2342

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1 action waiver shall be valid or enforceable with respect to 

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

3 and relates to a sexual assault dispute or a sexual harass4 ment dispute. 

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

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

7 shall be determined under Federal law. The applicability 

8 of this chapter to an agreement to arbitrate and the valid9 ity and enforceability of an agreement to which this chap10 ter applies shall be determined by a court, rather than 

11 an arbitrator, irrespective of whether the party resisting 

12 arbitration challenges the arbitration agreement specifi13 cally or in conjunction with other terms of the contract 

14 containing such agreement, and irrespective of whether 

15 the agreement purports to delegate such determinations 

16 to an arbitrator. 

17 ‘‘(c) EXCEPTION FOR COLLECTIVE BARGAINING

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

19 arbitration provision in a contract between an employer 

20 and a labor organization or between labor organizations, 

21 except that no such arbitration provision shall have the 

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

23 enforcement of a right arising under provision of the Con24 stitution of the United States, a State constitution, or a 


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1 Federal or State statute, or public policy arising there2 from.’’. 

3 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

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

5 Code is amended— 

6 (A) in section 2, by inserting ‘‘or as other7 wise provided in chapter 4’’ before the period at 

8 the end; 

9 (B) in section 208— 

10 (i) in the section heading, by striking 

11 ‘‘Chapter 1; residual application’’ 

12 and inserting ‘‘Application’’; and 

13 (ii) by adding at the end the fol14 lowing: ‘‘This chapter applies to the extent 

15 that this chapter is not in conflict with 

16 chapter 4.’’; and 

17 (C) in section 307— 

18 (i) in the section heading, by striking 

19 ‘‘Chapter 1; residual application’’ 

20 and inserting ‘‘Application’’; and 

21 (ii) by adding at the end the fol22 lowing: ‘‘This chapter applies to the extent 

23 that this chapter is not in conflict with 

24 chapter 4.’’. 

25 (2) TABLE OF SECTIONS.— 


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

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

3 amended by striking the item relating to section 

4 208 and inserting the following: 

‘‘208. Application.’’. 

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

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

7 amended by striking the item relating to section 

8 307 and inserting the following: 

‘‘307. Application.’’. 

9 (3) TABLE OF CHAPTERS.—The table of chap10 ters for title 9, United States Code, is amended by 

11 adding at the end the following: 

‘‘4. Arbitration of disputes involving sexual assault and 

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

12 SEC. 3. APPLICABILITY. 

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

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

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

Æ 


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