New Federal Legislation Will End Mandatory Arbitration of Race Discrimination Claims

Last year, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 into law. The name of the new law (HR 4445) speaks for itself. Victims of sexual harassment or sexual assault at work that previously signed arbitration agreements can arbitrate their claims but do not have to.

The American Association for Justice (AAJ) hosted a news conference at which Senator Cory Booker (D-NJ), Representative Colin Allred (D-TX), and Representative Hank Johnson (D-GA) announced the legislation. In a separate statement, the AAJ blasted "the secretive system of forced arbitration" as allowing "race discrimination and racially hostile environments to continue unabated and without consequence to those who perpetuate it."

Last year, on the heels of President Biden ending forced arbitration of sexual harassment claims, the House introduced a bill called the "Forced Arbitration Injustice Repeal Act of 2022" or the "FAIR Act of 2022." Rep. Johnson sponsored that bill too.

The FAIR Act would void any pre-dispute arbitration agreement or pre-dispute class-action waiver for an employment or civil rights dispute. In other words, employees would not have to arbitrate any claims.

Perhaps that was biting off a bit too much because while the FAIR Act passed in the House mostly on party lines, it stalled out in the Senate.

This time around, however, the Republicans control the House, and there are not enough Democrats in the Senate to overcome a filibuster. Neither fact bodes well for any partisan legislation — let alone directed at ending arbitration of specific employment claims.

For now (and in the foreseeable future), federal law does not preclude employers from requiring employees to arbitrate most employment claims, including those involving race discrimination.