II 117th CONGRESS 1st Session S. 3143 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. Short title This Act may be cited as the Resolving Sexual Assault and Harassment Disputes Act of 2021 . 2. Arbitration of sexual assault and sexual harassment claims (a) In general Title 9 of the United States Code is amended by adding at the end the following: 4 Arbitration of sexual assault claims; rights in arbitration of sexual harassment claims 401. Definitions In this chapter— (1) the term predispute arbitration agreement means any agreement to arbitrate a claim that had not yet arisen at the time of the making of the agreement; (2) the term sexual assault means a nonconsensual sexual act or sexual contact (as those terms are defined in section 2246 of title 18, or similar applicable State or Tribal law) perpetrated against an employee, including when the victim lacks capacity to consent; (3) the term sexual assault claim means a claim or dispute by an employee alleging that he or she was the victim of a sexual assault, based on alleged conduct that meets the definition of a sexual assault, brought by the employee against the employer, the employer and one or more employees, or one or more employees; (4) the term sexual harassment means— (A) (i) an unwelcome sexual advance; (ii) a request for a sexual favor; (iii) an offensive remark about a person’s sex; or (iv) any other verbal or physical harassment of a sexual nature; and (B) that is so frequent or severe that it creates a hostile or offensive work environment or results in an adverse employment decision; and (5) the term sexual harassment claim means a claim or dispute between an employee and employer, or among an employee, employer, and one or more employees, arising out of allegations of conduct that constitutes sexual harassment but does not fall within the definition of a sexual assault claim. 402. Limit on validity and enforceability (a) In general Notwithstanding any other provision of this title, a predispute arbitration agreement shall have no force or effect with respect to a sexual assault claim. (b) Other claims All claims other than those subject to subsection (a) shall be subject to the provisions of this title, provided that, for sexual harassment claims, section 403 is satisfied. 403. Rights in arbitration of sexual harassment claim (a) In general Notwithstanding any other provision of this title, a predispute arbitration agreement to which this chapter applies shall be valid or enforceable with respect to a sexual harassment claim if the predispute arbitration agreement— (1) allows a party to discuss publicly the claim to be arbitrated, unless both parties mutually agree otherwise after the claim has arisen, and subject to reasonable restrictions necessary to safeguard the privacy interests of third parties; (2) allows a party to report alleged violations of law to local, State, and Federal civil and criminal law enforcement authorities; (3) allows a party to discuss publicly the arbitrator’s decision, unless the parties mutually agree otherwise after the claim has arisen; (4) allows the arbitrator to grant a party’s reasonable request to engage in third-party discovery, including the ability to solicit evidence from other individuals or entities not parties to the arbitration; (5) allows a party to be represented by a lawyer in the arbitration proceeding; (6) provides for the appointment of an arbitrator who is impartial and obligated to disclose any bias, personal or financial interest in the arbitration, and past or present relationships with the parties or their representatives; (7) provides for the ability of the parties to receive a reasoned, written decision by the arbitrator; (8) if the agreement provides for a statute of limitations it is no shorter than the statute of limitations under the law applicable to the claim; (9) allows the claimant to recover individualized damages and other individualized relief authorized by the law applicable to the claim; (10) does not require the claimant to pay attorneys’ fees or expenses not authorized by the law applicable to the claim; and (11) does not require the claimant to pay arbitration fees greater than the filing fee for an action in Federal district court established by section 1914 of title 28, unless the arbitrator finds that the claimant’s claims are frivolous or brought for an improper purpose (as measured by the standards of Federal Rule of Civil Procedure 11(b)) or the claimant’s litigation conduct is vexatious (as measured by the standards of section 1927 of title 28). (b) Considerations In determining whether an arbitration agreement satisfies the standard set forth in subsection (a)(4), a court shall consider— (1) a claimant’s ability to obtain relevant evidence; (2) privacy interests of the claimant and third parties; and (3) whether the potential burdens that third-party discovery might impose are proportionate to the needs of the case. (c) Rule of construction A predispute arbitration agreement complies with subsection (a) if the agreement does not prohibit the conduct, the agreement affirmatively permits the conduct, or the rules of the arbitral forum selected in the agreement satisfy the requirement. 404. Attorneys’ fees for sexual assault and harassment claims (a) Fee distribution timing If the plaintiff in a civil action or arbitration proceeding is seeking monetary relief with respect to a sexual assault claim or a sexual harassment claim, there shall be a final determination, including exhaustion of appeals, of any monetary relief to be paid to the plaintiff, and payment to the plaintiff, before the determination or payment of costs or attorneys’ fees to the attorney for the plaintiff. (b) Fee determinations based on monetary relief Unless otherwise specified by Federal statute, if a judgment or settlement agreement in a civil action or arbitration proceeding provides monetary relief to the plaintiff with respect to a sexual assault claim or a sexual harassment claim, the portion of any attorneys’ fees paid to the attorney for the plaintiff that is attributable to the monetary relief with respect to that claim— (1) shall not exceed a reasonable percentage of the amount of monetary relief directly distributed to and received by the plaintiff with respect to the claim; and (2) in any event, shall not exceed the total amount of monetary relief directly distributed to and received by the plaintiff with respect to the claim. (c) Fee determinations based on equitable relief Unless otherwise specified by Federal statute, if a judgment or settlement agreement in a civil action or arbitration proceeding provides for equitable relief with respect to a sexual assault claim or a sexual harassment claim, the portion of any attorneys’ fees paid to the attorney for the plaintiff that is attributable to the equitable relief with respect to the claim shall not exceed a reasonable percentage of the value of the equitable relief, including any injunctive relief. 405. Study Two years after the date of enactment of this chapter, the Comptroller General of the United States shall conduct a study of, and shall provide a report to the relevant congressional committees, including the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives, the use of arbitration agreements in connection with this chapter. The study shall examine the total number of claims, the length of time to resolve a claim, party success rates, awards and settlement amounts, attorney’s fees, and the validity of arbitration clauses challenged according to section 406. The study shall examine both arbitration proceedings and settlement agreements, to the extent possible, pursuant to this chapter and compare the outcomes, the duration, and award and settlement amounts with other employment cases in the judicial system. 406. Applicability An issue as to whether this chapter applies with respect to a sexual assault claim or a sexual harassment claim shall be determined under Federal law. The applicability of this chapter to a predispute agreement to arbitrate such claims and the validity and enforceability of a predispute 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 predispute 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. In the instance when a court finds a predispute arbitration agreement invalid in accordance with this chapter, the employee or employees shall be awarded a reasonable attorney’s fee, including litigation expenses, and costs for challenging the predispute arbitration agreement. . (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 sexual assault claims; rights in arbitration of sexual harassment claims 401 . 3. Prospective effect This Act, and the amendments made by this Act, shall take effect on the date of enactment of this Act and shall apply with respect to any predispute arbitration agreement that is entered into or amended on or after such date.