H.R. 4445 — what changed

“4 Arbitration of disputes involving sexual assault and sexual harassment

“401. Definitions

“In this chapter:

“(1) Predispute arbitration agreement—The term predispute arbitration agreement means any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.

“(2) Predispute joint-action waiver—The term predispute joint-action waiver means an agreement, whether or not part of a predispute arbitration agreement, that would prohibit, or waive the right of, one of the parties to the agreement to participate in a joint, class, or collective action in a judicial, arbitral, administrative, or other forum, concerning a dispute that has not yet arisen at the time of the making of the agreement.

“(3) Sexual assault dispute—The term sexual assault dispute means a dispute involving a nonconsensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18 or similar applicable Tribal or State law, including when the victim lacks capacity to consent.

changed “(4) Sexual harassment dispute—The term sexual harassment dispute means a dispute relating to the any of the following conduct directed at an individual or a group of individuals:

“(A) Unwelcome sexual advances.

“(B) Unwanted physical contact that is sexual in nature, including assault.

“(C) Unwanted sexual attention, including unwanted sexual comments and propositions for sexual activity.

“(D) Conditioning professional, educational, consumer, health care or long-term care benefits on sexual activity.

“(E) Retaliation for rejecting unwanted sexual attention.

“402. No validity or enforceability

changed “(a) In general—Except as provided in subsection (c), and notwithstanding general—Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to a the sexual assault dispute or a the sexual harassment dispute.

changed “(b) Determination of applicability—An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an 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 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.arbitrator.”

removed “(c) Exception for collective bargaining agreements—Nothing in this chapter shall apply to any arbitration provision in a contract between an employer and a labor organization or between labor organizations, except that no such arbitration provision shall have the effect of waiving the right of an employee to seek judicial enforcement of a right arising under provision of the Constitution of the United States, a State constitution, or a Federal or State statute, or public policy arising therefrom.”