II 

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. 

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 ‘‘Resolving Sexual As5 sault and Harassment Disputes Act of 2021’’. 


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1 SEC. 2. ARBITRATION OF SEXUAL ASSAULT AND SEXUAL 

2 HARASSMENT CLAIMS. 

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

4 is amended by adding at the end the following: 

5 ‘‘CHAPTER 4—ARBITRATION OF SEXUAL 

6 ASSAULT CLAIMS; RIGHTS IN ARBI7 TRATION OF SEXUAL HARASSMENT 

8 CLAIMS 

9 ‘‘SEC. 401. DEFINITIONS. 

10 ‘‘In this chapter— 

11 ‘‘(1) the term ‘predispute arbitration agree12 ment’ means any agreement to arbitrate a claim 

13 that had not yet arisen at the time of the making 

14 of the agreement; 

15 ‘‘(2) the term ‘sexual assault’ means a non16 consensual sexual act or sexual contact (as those 

17 terms are defined in section 2246 of title 18, or 

18 similar applicable State or Tribal law) perpetrated 

19 against an employee, including when the victim lacks 

20 capacity to consent; 

21 ‘‘(3) the term ‘sexual assault claim’ means a 

22 claim or dispute by an employee alleging that he or 

23 she was the victim of a sexual assault, based on al24 leged conduct that meets the definition of a sexual 

25 assault, brought by the employee against the emVerDate Sep 11 2014 22:05 Nov 04, 2021 Jkt 029200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3143.IS S3143

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1 ployer, the employer and one or more employees, or 

2 one or more employees; 

3 ‘‘(4) the term ‘sexual harassment’ means— 

4 ‘‘(A)(i) an unwelcome sexual advance; 

5 ‘‘(ii) a request for a sexual favor; 

6 ‘‘(iii) an offensive remark about a person’s 

7 sex; or 

8 ‘‘(iv) any other verbal or physical harass9 ment of a sexual nature; and 

10 ‘‘(B) that is so frequent or severe that it 

11 creates a hostile or offensive work environment 

12 or results in an adverse employment decision; 

13 and 

14 ‘‘(5) the term ‘sexual harassment claim’ means 

15 a claim or dispute between an employee and em16 ployer, or among an employee, employer, and one or 

17 more employees, arising out of allegations of conduct 

18 that constitutes sexual harassment but does not fall 

19 within the definition of a sexual assault claim. 

20 ‘‘SEC. 402. LIMIT ON VALIDITY AND ENFORCEABILITY. 

21 ‘‘(a) IN GENERAL.—Notwithstanding any other pro22 vision of this title, a predispute arbitration agreement 

23 shall have no force or effect with respect to a sexual as24 sault claim. 


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1 ‘‘(b) OTHER CLAIMS.—All claims other than those 

2 subject to subsection (a) shall be subject to the provisions 

3 of this title, provided that, for sexual harassment claims, 

4 section 403 is satisfied. 

5 ‘‘SEC. 403. RIGHTS IN ARBITRATION OF SEXUAL HARASS6 MENT CLAIM. 

7 ‘‘(a) IN GENERAL.—Notwithstanding any other pro8 vision of this title, a predispute arbitration agreement to 

9 which this chapter applies shall be valid or enforceable 

10 with respect to a sexual harassment claim if the predispute 

11 arbitration agreement— 

12 ‘‘(1) allows a party to discuss publicly the claim 

13 to be arbitrated, unless both parties mutually agree 

14 otherwise after the claim has arisen, and subject to 

15 reasonable restrictions necessary to safeguard the 

16 privacy interests of third parties; 

17 ‘‘(2) allows a party to report alleged violations 

18 of law to local, State, and Federal civil and criminal 

19 law enforcement authorities; 

20 ‘‘(3) allows a party to discuss publicly the arbi21 trator’s decision, unless the parties mutually agree 

22 otherwise after the claim has arisen; 

23 ‘‘(4) allows the arbitrator to grant a party’s 

24 reasonable request to engage in third-party dis25 covery, including the ability to solicit evidence from 


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1 other individuals or entities not parties to the arbi2 tration; 

3 ‘‘(5) allows a party to be represented by a law4 yer in the arbitration proceeding; 

5 ‘‘(6) provides for the appointment of an arbi6 trator who is impartial and obligated to disclose any 

7 bias, personal or financial interest in the arbitration, 

8 and past or present relationships with the parties or 

9 their representatives; 

10 ‘‘(7) provides for the ability of the parties to re11 ceive a reasoned, written decision by the arbitrator; 

12 ‘‘(8) if the agreement provides for a statute of 

13 limitations it is no shorter than the statute of limita14 tions under the law applicable to the claim; 

15 ‘‘(9) allows the claimant to recover individual16 ized damages and other individualized relief author17 ized by the law applicable to the claim; 

18 ‘‘(10) does not require the claimant to pay at19 torneys’ fees or expenses not authorized by the law 

20 applicable to the claim; and 

21 ‘‘(11) does not require the claimant to pay arbi22 tration fees greater than the filing fee for an action 

23 in Federal district court established by section 1914 

24 of title 28, unless the arbitrator finds that the claim25 ant’s claims are frivolous or brought for an improper 


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1 purpose (as measured by the standards of Federal 

2 Rule of Civil Procedure 11(b)) or the claimant’s liti3 gation conduct is vexatious (as measured by the 

4 standards of section 1927 of title 28). 

5 ‘‘(b) CONSIDERATIONS.—In determining whether an 

6 arbitration agreement satisfies the standard set forth in 

7 subsection (a)(4), a court shall consider— 

8 ‘‘(1) a claimant’s ability to obtain relevant evi9 dence; 

10 ‘‘(2) privacy interests of the claimant and third 

11 parties; and 

12 ‘‘(3) whether the potential burdens that third13 party discovery might impose are proportionate to 

14 the needs of the case. 

15 ‘‘(c) RULE OF CONSTRUCTION.—A predispute arbi16 tration agreement complies with subsection (a) if the 

17 agreement does not prohibit the conduct, the agreement 

18 affirmatively permits the conduct, or the rules of the arbi19 tral forum selected in the agreement satisfy the require20 ment. 

21 ‘‘SEC. 404. ATTORNEYS’ FEES FOR SEXUAL ASSAULT AND 

22 HARASSMENT CLAIMS. 

23 ‘‘(a) FEE DISTRIBUTION TIMING.—If the plaintiff in 

24 a civil action or arbitration proceeding is seeking monetary 

25 relief with respect to a sexual assault claim or a sexual 


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1 harassment claim, there shall be a final determination, in2 cluding exhaustion of appeals, of any monetary relief to 

3 be paid to the plaintiff, and payment to the plaintiff, be4 fore the determination or payment of costs or attorneys’ 

5 fees to the attorney for the plaintiff. 

6 ‘‘(b) FEE DETERMINATIONS BASED ON MONETARY

7 RELIEF.—Unless otherwise specified by Federal statute, 

8 if a judgment or settlement agreement in a civil action 

9 or arbitration proceeding provides monetary relief to the 

10 plaintiff with respect to a sexual assault claim or a sexual 

11 harassment claim, the portion of any attorneys’ fees paid 

12 to the attorney for the plaintiff that is attributable to the 

13 monetary relief with respect to that claim— 

14 ‘‘(1) shall not exceed a reasonable percentage of 

15 the amount of monetary relief directly distributed to 

16 and received by the plaintiff with respect to the 

17 claim; and 

18 ‘‘(2) in any event, shall not exceed the total 

19 amount of monetary relief directly distributed to and 

20 received by the plaintiff with respect to the claim. 

21 ‘‘(c) FEE DETERMINATIONS BASED ON EQUITABLE

22 RELIEF.—Unless otherwise specified by Federal statute, 

23 if a judgment or settlement agreement in a civil action 

24 or arbitration proceeding provides for equitable relief with 

25 respect to a sexual assault claim or a sexual harassment 


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1 claim, the portion of any attorneys’ fees paid to the attor2 ney for the plaintiff that is attributable to the equitable 

3 relief with respect to the claim shall not exceed a reason4 able percentage of the value of the equitable relief, includ5 ing any injunctive relief. 

6 ‘‘SEC. 405. STUDY. 

7 ‘‘Two years after the date of enactment of this chap8 ter, the Comptroller General of the United States shall 

9 conduct a study of, and shall provide a report to the rel10 evant congressional committees, including the Committee 

11 on the Judiciary of the Senate and the Committee on the 

12 Judiciary of the House of Representatives, the use of arbi13 tration agreements in connection with this chapter. The 

14 study shall examine the total number of claims, the length 

15 of time to resolve a claim, party success rates, awards and 

16 settlement amounts, attorney’s fees, and the validity of ar17 bitration clauses challenged according to section 406. The 

18 study shall examine both arbitration proceedings and set19 tlement agreements, to the extent possible, pursuant to 

20 this chapter and compare the outcomes, the duration, and 

21 award and settlement amounts with other employment 

22 cases in the judicial system. 

23 ‘‘SEC. 406. APPLICABILITY. 

24 ‘‘An issue as to whether this chapter applies with re25 spect to a sexual assault claim or a sexual harassment 


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1 claim shall be determined under Federal law. The applica2 bility of this chapter to a predispute agreement to arbi3 trate such claims and the validity and enforceability of a 

4 predispute agreement to which this chapter applies shall 

5 be determined by a court, rather than an arbitrator, irre6 spective of whether the party resisting arbitration chal7 lenges the predispute arbitration agreement specifically or 

8 in conjunction with other terms of the contract containing 

9 such agreement, and irrespective of whether the agree10 ment purports to delegate such determinations to an arbi11 trator. In the instance when a court finds a predispute 

12 arbitration agreement invalid in accordance with this 

13 chapter, the employee or employees shall be awarded a 

14 reasonable attorney’s fee, including litigation expenses, 

15 and costs for challenging the predispute arbitration agree16 ment.’’. 

17 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

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

19 Code is amended— 

20 (A) in section 2, by inserting ‘‘or as other21 wise provided in chapter 4’’ before the period at 

22 the end; 

23 (B) in section 208— 

24 (i) in the section heading, by striking 

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1 CATION’’ and inserting ‘‘APPLICA2 TION’’; and 

3 (ii) by adding at the end the fol4 lowing: ‘‘This chapter applies to the extent 

5 that this chapter is not in conflict with 

6 chapter 4.’’; and 

7 (C) in section 307— 

8 (i) in the section heading, by striking 

9 ‘‘CHAPTER 1; RESIDUAL APPLI10 CATION’’ and inserting ‘‘APPLICA11 TION’’; and 

12 (ii) by adding at the end the fol13 lowing: ‘‘This chapter applies to the extent 

14 that this chapter is not in conflict with 

15 chapter 4.’’. 

16 (2) TABLE OF SECTIONS.— 

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

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

19 amended by striking the item relating to section 

20 208 and inserting the following: 

‘‘208. Application.’’. 

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

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

23 amended by striking the item relating to section 

24 307 and inserting the following: 

‘‘307. Application.’’. 


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1 (3) TABLE OF CHAPTERS.—The table of chap2 ters for title 9, United States Code, is amended by 

3 adding at the end the following: 

‘‘4. Arbitration of sexual assault claims; rights in arbitration of sexual harassment claims .............. 401’’. 

4 SEC. 3. PROSPECTIVE EFFECT. 

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

6 shall take effect on the date of enactment of this Act and 

7 shall apply with respect to any predispute arbitration 

8 agreement that is entered into or amended on or after 

9 such date. 

Æ 


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