#MeToo at Work: A Paradigm Shift Through Federal Legislation

The #MeToo movement has left an indelible imprint on American society over the last six or so years. In addition to the oft cited Harvey Weinstein case,1 public discourse surrounding the issues of sexual assault and sexual harassment in the workplace increased in large part due to the events involving disgraced Fox News president Roger Ailes and his notorious mistreatment of numerous female coworkers including most notably on-air hosts Gretchen Carlson and Megyn Kelly.2 Out of that discourse, two key pieces of federal legislation were born: the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “EFAA”)3 and the Speak Out Act (“Speak Out”).4 These federal statutes have together shifted the balance of power into the hands of employees alleging sexual assault and sexual harassment, giving them the keys to the courthouse and the ability to publicize their accusations in many cases where they previously would have been kept silent by arbitration and nondisclosure provisions and/or agreements.

The EFAA

The EFAA was proposed and passed with strong bipartisan support in early February 2022 before President Biden signed the Act into law on March 3, 2022.5 It amended the Federal Arbitration Act (FAA) and prohibits the forced arbitration of sexual assault and harassment claims, opening the door for such claims to be brought in court, regardless of whether the complainant is bound by a mandatory arbitration provision. Rather than automatically rendering pre-dispute arbitration agreements or class/collective action waivers invalid and unenforceable, the EFAA permits any person or named representative of a class or collective action alleging sexual harassment or sexual assault dispute under federal, tribal, or state law to elect to invalidate such agreements. It also allows a plaintiff to seek to invalidate any agreement that would waive an employee’s right to participate in a class action claim based on such allegations. Fundamentally speaking, the EFAA provides the alleged aggrieved party of sexual assault or sexual harassment with the power to decide the forum where they want to have their claims adjudicated: before a judge in court or behind closed doors before an arbitrator.

The EFAA applies to any claim of sexual harassment or assault under Federal, State, or tribal law that “arises or accrues on or after the date of enactment of [the] Act.”6 This means that a complainant can invalidate any pre-dispute arbitration agreement or class/collective action waiver even if it was executed prior to March 3, 2022. Notwithstanding, the EFAA does not allow a sexual assault and sexual harassment complainant to seek to invalidate a pre-dispute agreement if the alleged assault and/or harassment occurred prior to March 3, 2022. Further, the limitation on prohibiting an employee’s right to join a class action regarding cases of sexual abuse or sexual harassment would apply to waivers found in arbitration agreements and in any other employment agreements.

SPEAK OUT

Following enactment of the EFAA, Congress passed the Speak Out Act (“Speak Out”), which President Biden signed into law on December 7, 2022.7 Speak Out cuts off an employer’s ability to utilize non-disclosure and/or non-disparagement agreements that would prohibit an employee (or former employee) from disclosing any allegations pertaining to sexual assault and/or harassment regardless of whether the disclosing employee was the actual target of the assault and/ or harassment. Speak Out was designed with the express intent of combatting sexual assault and harassment in a way that grants freedom of reporting and public disclosure on these topics.

Speak Out renders unenforceable any non-disclosure and/or non-disparagement clause that: (a) was entered into on or after December 7, 2022; (b) was entered into before a covered sexual harassment dispute and/or sexual assault dispute arose; and (c) requires the employee not to: (i) disclose or discuss conduct, the existence of a settlement involving conduct, or information covered by the terms and conditions of the contract or agreement related to a sexual assault dispute or a sexual harassment dispute; or (ii) make negative statements about another party that relates to the contract, agreement, claim or case. Speak Out by its terms applies to claims filed post-December 7, 2022, but it does not apply to non-disclosure and non-disparagement clauses executed in connection with disputes concerning claims filed before December 7, 2022.

CONCLUSION

Despite the EFAA and Speak Out Act being in their legal infancy, each law has wide ranging implications not only in the workplace but also in the courts. While research has yielded no published cases citing the EFAA in the state or federal courts of Tennessee as of the time of this article’s preparation, there have already been at least four reported federal cases and at least one reported state case concerning the EFAA’s application in 2023 alone.8 Given the sheer estimates of employers who have utilized mandatory arbitration agreements and/or nondisclosure agreements prior to enactment of the EFAA and Speak Out, it is anticipated that this small but growing trend of suits in our fellow jurisdictions is an indication of what is to come, and counsel on both sides of the bar would do well to familiarize themselves with not only the operative provisions of both the EFAA and Speak Out but also the quickly developing body of case law interpreting them.

MEKESHA MONTGOMERY is the office managing partner of Frost Brown Todd LLP in Nashville, Tennessee, where she often serves clients in the role of outside general counsel and is the Chair of Frost Brown Todd’s Manufacturing Industry Team. Mekesha’s practice focuses upon representing management clients in a variety of labor and employment matters, including in the areas of union negotiations and arbitration and employment discrimination/wrongful discharge. Mekesha graduated from the University of Kentucky with honors where she was inducted as a member of Phi Beta Kappa academic honor society as well as the University of Kentucky’s College of Law where she served as Associate Editor of the Kentucky Law Journal.

SETH GRANDA is a Senior Associate with Frost Brown Todd LLP in Nashville, Tennessee, where he practices in the area of labor and employment law. Seth received his undergraduate degree with honors from Belmont University in 2012 where he was inducted as a member of Phi Alpha Theta history honor society before continuing on to graduate from Belmont University’s College of Law in 2016. Seth advises management clients in the manufacturing, health care, supply chain, and automotive industries, and he represents them in litigation and other proceedings in federal, state, and administrative forums throughout the United States.

Endnotes

1 Friedman, V. (2023, April 8). Lawsuit Accuses Former Associate of Harvey Weinstein of Rape. The new York Times https://www.nytimes.com/2023/04/07/style/saraziff-fabrizio-lombardo-rape.html

2 Dockterman, E. (2019, December 16). The true story behind Bombshell and the Fox News Scandal Time https://time.com/5748267/bombshell-true-story-foxnews/.

3 9 U.S.C. §§ 401–02 (West through P.L.118-6).

4 42 U.S.C. § 19403 (West through P.L.118-6).

5 David Horton, The Limits of the Ending Forced Arbitration of SexualAssault and Sexual HarassmentAct, YALe L.J. ForUm (June 23, 2022), https://www.yalelawjournal.org/forum/the-limits-of-the-ending-forced-arbitration-of-sexual-assault-and-sexual-harassment-act

6 For those inclined to overlook the breadth of the EFA, it should be noted that it is not limited to the employment context. It may be read to apply to independent contractors, patients, customers, and any other individual with whom a business might attempt to enforce mandatory arbitration. Therefore, any person who is bound by a pre-dispute mandatory arbitration agreement alleging sexual assault or harassment within the applicable time frame could theoretically invoke the EFA’s invalidation power.

7 Biden signs law curbing nondisclosure agreements that block victims of sexual harassment from speaking out. (2022, December 7). PBS NewsHour. https://www.pbs.org/newshour/politics/biden-signs-law-curbing-nondisclosure-agreements-that-blok-victims-of-sexual-harassment-from-speaking-out.

8 Mera v. SA Hosp. Grp., LLC, No. 123CV03492PGGSDA, 2023 WL 3791712 (S.D.N.Y. June 3, 2023) (invalidating arbitration agreement as to plaintiff’s sexual

Hodgin v. Intensive Care Consortium, Inc., No. 22-81733CV, 2023 WL 2751443 (S.D. Fla. Mar. 31, 2023) (EFAA did not apply because plaintiff’s dispute arose at the time of filing EEOC charges prior to EFAA enact, No. 22 CIV. 6669 (PAE), 2023 WL 2216173 (S.D.N.Y. Feb. 24, 2023) (entire action was exempted from arbitration under the EFAA by virtue of having plausibly pleaded claims for sexual harassment under New York City Human Rights Law (NYCHRL)); Yost v. Everyrealm, Inc., No. 22 CIV. 6549 (PAE), 2023 WL 2224450 (S.D.N.Y. Feb. 24, 2023) (EFAA did not apply because sexual harassment claims were not plausibly pled even under NYCHRL’s more lenient “unwanted gender-based conduct” standard); Walters v. Star, 623 F. Supp. 3d 333 (S.D.N.Y. 2022) (EFAA did not apply because claims arose or accrued prior to EFAA enactment); and Murrey v. Superior Ct., 87 Cal. App. 5th 1223, 304 Cal. Rptr. 3d 439 (2023) (EFAA did not apply retroactively to case filed prior to statutory enactment). Authors’ note: numerous unreported federal cases are omitted from this citation due to word count limitations.