Such waivers can be included in arbitration agreements or be standalone agreements, and although they are frequently signed at the beginning of an employer-employee relationship, they can be executed during the course of the relationship.The Act defines a “sexual assault dispute” as a dispute involving a nonconsensual sexual act or sexual contact, as such terms are defined in 18 U.S.C. 2246 or similar state or tribunal law (including when the victim lacks the capacity to consent), and it defines a “sexual harassment dispute” as a dispute relating to conduct alleged to constitute sexual harassment under applicable federal, state, or tribal law.Five Key TakeawaysHere are five things employers need to know about the Act:The Act does not invalidate existing Predispute Agreements; rather it gives employees alleging sexual assault or sexual harassment the option to invalidate them and bars employers from enforcing them. The Act preserves an employee’s right to choose to arbitrate his or her claims pursuant to a predispute arbitration agreement.

The Act's CoverageThe Act will amend the Federal Arbitration Act (FAA), which currently requires enforcement of arbitration agreements and class/collective action waivers by creating an important carveout for sexual assault and sexual harassment disputes. The Act defines "sexual assault dispute" broadly as a dispute involving nonconsensual sexual acts or sexual contact, as such terms are defined in 18 U.S.C. § 2246 or similar applicable tribal or state law, including when the victim lacks capacity to consent. Similarly, the Act broadly defines "sexual harassment dispute" to mean a dispute relating to conduct that is alleged to constitute sexual harassment under applicable federal, tribal, or state law.

Although the Act is a federal law applying to all individuals (and employers), the prohibitions are not limited to Title VII and extend to disputes arising under state and tribal laws. The Act defines sexual assault as a nonconsensual sexual act or sexual contact, as defined in 18 U.S.C. §2246 (the federal law criminalizing sexual abuse) or similar applicable tribal or state law. The Act even more generally defines sexual harassment as conduct that is alleged to constitute sexual harassment under applicable federal, tribal, or state law.Agreement to waive a jury trial is not addressed.

In addition, the enrolled bill appears to permit plaintiffs the ability to opt-out of any pre-dispute waiver of class action or representative status provisions that employers have used to eliminate potential class action sexual harassment or sexual assault claims.HR 4445, on its face, will apply narrowly to claims asserting a sexual assault under 18 USC 2246 and, more broadly, to conduct that is alleged to constitute sexual harassment under Federal, Tribal or State laws.Finally, HR 4445 ensures that any disputes about the enforceability of an arbitration agreement are to be decided in court, not by an arbitrator, even where the arbitration agreement provides for arbitrability issues to be decided by an arbitrator.

The term “sexual activity” is not defined. In this case, the Seventh Circuit concluded tha the definition of “sexual act” which applies to crimes under 18 U.S.C. § 2246(2)(D), should apply. The conduct in this case would have amounted to a misdemeanor under Indiana law (i.e., masturbation).