Why Gender-Based Harassment Claims Might No Longer Subject to Mandatory Arbitration
Many employers require employees to sign arbitration agreements as a pre-condition for employment. These arbitration agreements require employees to pre-emptively waive their right to bring employment-related claims against their employer in court. Instead, employees who sign arbitration agreements are forced to pursue employment claims against their employer in private arbitration. While arbitration certainly has its benefits (i.e., a quicker and less expensive resolution), there are downsides for plaintiffs (i.e., no public record of the claims, restricted discovery tools, and no right to a jury). A public record of the dispute and having the merits of a claim decided by a jury are arguably even more important in cases where there is a sympathetic plaintiff who has experienced toxic, hostile, or harassing conduct that the average person would find intolerable and inexcusable. There is good news on this front for employees bringing gender-based harassment claims.
In 2022, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the “Act”) was signed into law. The Act prohibits employers from enforcing employees to arbitrate sexual assault or sexual harassment claims. Even if an employee signed an otherwise valid arbitration agreement, the employee is entitled to litigate their sexual assault and sexual harassment claims in court—in which case there would be a public record of the claims, and the employee would be entitled to have a jury decide the case. Importantly, the Act empowers the employee to choose between arbitration or litigation, rather than forcing one or the other on them.
The Act does not narrowly define “sexual harassment” to only include quid pro quo harassment claims (where job advancement or job benefits are conditioned upon the employee’s submission to sexual advances) and harassment/hostile-work-environment claims relating to sexual advances or sexual desire. Rather, the Act defines “sexual harassment” as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” 9 U.S.C. § 401(4). This is important because harassing conduct that is not necessarily tied to sexual advances or sexual desire—but is based on gender—constitutes “sexual harassment.” As the U.S. Supreme Court has made clear, “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.” Oncale v. Sundowner Offshore Serv., 523 U.S. 75, 80 (1998). And according to the Ninth Circuit, “there is no legal requirement that hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures.” E.E.O.C. v. National Educ. Ass'n, Alaska, 422 F.3d 840, 844 (9th Cir. 2005). Rather, “[t]he ultimate question in either event is whether ‘members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’” Id. (citing Oncale, 523 U.S. at 80) (additional citation omitted).
Additionally, the Act states that “no predispute agreement . . . 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 sexual harassment dispute.” 9 U.S.C. § 402(a) (emphasis added). Courts have already found that the Act’s use of the word “case,” rather than “claim” means Congress intended for the entire case to proceed in court outside of the private arbitration forum. See Brown v. Lululemon USA Inc. Lululemon Athletica USA, Inc., No. 2:25-cv-09629-WLH-AGR, 2026 U.S. Dist. LEXIS 34679, at *11–12 (C.D. Cal. Jan. 28, 2026) (collecting cases).
What does all of this mean for employees with gender-based harassment claims who have signed arbitration agreements? It means that these employees have a valid pathway to pursue their entire case—including non-harassment claims—in court.
