The short version: Usually not anymore. Under the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, a person with a sexual harassment or sexual assault claim can choose to go to court instead of arbitration, even if they signed an arbitration agreement before the dispute. It covers claims that arose or accrued on or after March 3, 2022, and a judge, not an arbitrator, decides whether it applies.
Buried in a lot of onboarding paperwork is a clause that says any dispute with your employer goes to private arbitration instead of court. For years, that meant harassment claims were handled behind closed doors, in front of an arbitrator the company helped pay for, with no jury.
Congress changed that for sexual harassment and sexual assault claims in 2022.
What does the law say?
The law amended the Federal Arbitration Act. It says that a person alleging conduct that amounts to a sexual harassment dispute or sexual assault dispute can elect to make a predispute arbitration agreement unenforceable for that case (9 U.S.C. § 402(a)). The same goes for a "joint-action waiver," the clause that tries to stop you from joining a class or collective action.
Three details matter:
- It's your choice. You can still go to arbitration if you want to. The law gives you the option to say no.
- It covers state-law claims too. The protection applies whether your claim is under federal, tribal, or state law, so California harassment claims are included.
- A judge decides. Whether the law applies to your case is decided by a court, not an arbitrator, even if your agreement says otherwise (9 U.S.C. § 402(b)).
Does it apply to my case?
The law applies to any dispute or claim that arises or accrues on or after March 3, 2022, the day it was signed. If your harassment happened before then, your options depend on the facts, and a lawyer should look at the timeline.
What about my other claims?
Harassment cases often include related claims, like retaliation for complaining or a wrongful firing afterward. How the law treats those related claims has been the subject of court decisions since 2022, and the answer can depend on how your case is put together. This is one place where having a lawyer from the start makes a real difference.
Why court matters
Arbitration isn't always worse for workers, but court gives you things arbitration usually doesn't:
- A jury of ordinary people instead of a single private arbitrator
- A public record, if you want one
- Appeal rights if the law is applied wrong
- No repeat-player advantage for the employer that brings cases to the same arbitration firms again and again
What should I do if I signed an arbitration agreement?
Don't assume you're stuck. Find a copy of what you signed, or ask HR for it in writing, and bring it to a lawyer. And keep an eye on your deadlines, which are covered in our guide to how long you have to file a sexual harassment claim.
Harassed at work?
You don't have to handle it alone. Tell us what happened, and we'll help you understand your options.
Get help nowThis article is general information about California and federal law as of its date, not legal advice for your situation. Laws change, and the right move depends on your facts.