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 speaks for itself. Victims of sexual harassment or sexual assault at work that previously signed arbitration agreements can arbitrate their claims but don’t have to.

Yesterday, multiple news outlets, including Roll Call’s Ryan Tarinelli, reported that both the House and Senate will introduce a bill soon to end the forced arbitration of race discrimination claims in the workplace.

Law360’s Amanda Ottaway reports that the measure is called the “Ending Forced Arbitration of Race Discrimination Act of 2023,” and it was supposed to be introduced in Congress yesterday, according to the American Association for Justice. The AAJ hosted a news conference at which Senator Cory Booker (NJ-D), Representative Colin Allred (D-TX 32nd District), and Representative Hank Johnson (D-GA 4th District) 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.”

That seems somewhat hyperbolic to me.

In any case, I checked govtrack this morning and did not yet see a copy of the bill.

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 aren’t 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.