Can I Be Forced Into Arbitration for a Sexual Harassment Claim in New York?

Not always. Under a federal law enacted on March 3, 2022, a person who alleges sexual harassment or sexual assault can choose to bring the case in court even if they signed an agreement to arbitrate before the dispute arose.⁠^[1][2] The choice belongs to the person bringing the claim, and a court, not an arbitrator, decides whether the law applies.⁠^[1][3]

Arbitration is a private process in which a neutral decision-maker, instead of a judge or jury, resolves a dispute. Arbitration clauses can appear in job applications, offer letters, handbooks and onboarding paperwork. For the general rules on these clauses, see the guide to arbitration agreements in New York employment.

What does the federal law say?

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 is a federal statute that amended the Federal Arbitration Act. Under 9 U.S.C. § 402(a), "at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute," no predispute arbitration agreement or predispute joint-action waiver is valid or enforceable with respect to a case that is filed under federal, tribal or state law and relates to that dispute.⁠^[1]

Three features of that sentence matter in practice:

• It reaches agreements made before the dispute. The federal statute speaks of "predispute" arbitration agreements, meaning agreements signed before the dispute arose.⁠^[1]
• It reaches class and collective waivers. The same federal provision makes a predispute joint-action waiver, a clause giving up the ability to proceed as a class or collective, unenforceable at the person's election.⁠^[1]
• It applies to cases filed under state law too. The federal provision covers a case "filed under Federal, Tribal, or State law," so its terms are not limited to claims under federal statutes such as Title VII.⁠^[1]

This is an exception to a strong general rule. The Federal Arbitration Act makes a written arbitration agreement "valid, irrevocable, and enforceable," except on grounds that would revoke any contract "or as otherwise provided in chapter 4," the chapter that holds the 2022 exception.⁠^[7] In 2018 the U.S. Supreme Court held that employment arbitration agreements calling for individual proceedings, without class or collective actions, are to be enforced under that Act.⁠^[8]

Which claims count as a sexual harassment or sexual assault dispute?

The federal statute defines a "sexual harassment dispute" as "a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law."⁠^[3] A "sexual assault dispute" is one involving a nonconsensual sexual act or sexual contact, as defined in a federal criminal statute or similar tribal or state law.⁠^[9]

Because the federal definition points to state law as well as federal law, the State standard is part of the picture. Under the New York State Human Rights Law (NYSHRL), harassment is unlawful "regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims."⁠^[10] The guides on what counts as sexual harassment in New York and on the end of the "severe or pervasive" requirement explain the State and New York City definitions.

Who decides whether the federal law applies?

A court. Under 9 U.S.C. § 402(b), the applicability of the federal law to an agreement to arbitrate "shall be determined by a court, rather than an arbitrator," whether or not the agreement purports to delegate such determinations to an arbitrator.⁠^[3] Some arbitration agreements say the arbitrator decides what is arbitrable. For a sexual harassment or sexual assault dispute, the federal statute overrides that clause on this question.⁠^[3]

My agreement was signed before 2022. Does that matter?

The signing date is not the test. The federal law applies "with respect to any dispute or claim that arises or accrues on or after" its date of enactment, March 3, 2022.⁠^[2]

The federal appeals court that covers New York, the U.S. Court of Appeals for the Second Circuit, applied that language in Olivieri v. Stifel, Nicolaus & Co., decided on August 12, 2024. The court held that "accrue" has the same meaning under this law as in the statute-of-limitations context, and that under the continuing violation doctrine the limitations period for a hostile work environment claim runs from the last act in the continuing course of conduct.⁠^[11] The employee in that case began to experience a retaliatory hostile work environment before March 3, 2022, but the conduct persisted after that date, so the court held that her claim accrued after it and that she was permitted to invalidate her arbitration agreement.⁠^[11]

The guide to the continuing violation doctrine explains how courts treat conduct that stretches over time.

What about New York's own ban on mandatory arbitration?

New York State has a statute on the subject. CPLR § 7515 provides that, "except where inconsistent with federal law," no written contract entered into on or after its effective date may contain a clause requiring mandatory arbitration of a discrimination claim, and that any such clause is null and void.⁠^[4] The section was enacted in 2018 as part of a package of sexual harassment measures and was widened in 2019 to cover all discrimination claims.⁠^[12][13]

The words "except where inconsistent with federal law" limit the section. The State's own published guidance now tells the public that CPLR § 7515 is "largely overruled ('preempted') by the Federal Arbitration Act" and that court rulings have held its prohibition on mandatory arbitration of all discrimination claims to be preempted.⁠^[5]

The rules side by side

Source	Layer	What it says
Federal Arbitration Act, 9 U.S.C. § 2	Federal	Written arbitration agreements are valid, irrevocable and enforceable, except on grounds that would revoke any contract or as provided in the 2022 exception.⁠[7]
9 U.S.C. § 402(a)	Federal	At the election of the person alleging a sexual harassment or sexual assault dispute, a predispute arbitration agreement or joint-action waiver is not valid or enforceable for a case relating to that dispute.⁠[1]
9 U.S.C. § 402(b)	Federal	A court, not an arbitrator, decides whether the 2022 law applies.⁠[3]
CPLR § 7515	New York State	Mandatory arbitration clauses for discrimination claims are null and void "except where inconsistent with federal law"; the State describes the section as largely preempted.⁠[4][5]

Does the federal law cover the other claims in my case?

The federal statute applies to "a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute."⁠^[1] In Olivieri, the claim the Second Circuit analyzed was a retaliatory hostile work environment claim.⁠^[11] How courts handle a lawsuit that joins a sexual harassment claim with unrelated claims, such as a wage claim, is not addressed in this guide.

For claims that have nothing to do with sexual harassment or sexual assault, the general federal rule that written arbitration agreements are enforceable still applies.⁠^[7] The State's guidance describes CPLR § 7515's prohibition for other discrimination claims as preempted.⁠^[5]

What if I am covered by a union contract?

CPLR § 7515 says that where a collective bargaining agreement conflicts with the section, the agreement controls.⁠^[14] The State's guidance reads the federal law differently: it says the federal prohibition on mandatory arbitration of sexual harassment claims "makes no exception" for collective bargaining agreements and so overrides that part of the State statute.⁠^[15] That is a State agency's reading of a federal statute, not a court decision.⁠^[15]

Separately, the U.S. Supreme Court has held that a collective bargaining agreement provision that clearly and unmistakably requires union members to arbitrate federal age-discrimination claims is enforceable.⁠^[16] The guide for union members with discrimination claims covers grievances and arbitration under a union contract.

Can I still go to a government agency?

The State's guidance says that mandatory arbitration clauses "are not enforced" by the New York State Division of Human Rights, which intends to proceed with any discrimination claims filed with it, not just sexual harassment claims.⁠^[6] The same guidance adds a caution: the issue has not been resolved by higher courts, and in a particular case a judge might order the Division to stop processing a claim.⁠^[6]

Choosing an agency has consequences of its own. See the comparison of the EEOC, the Division of Human Rights, the NYC Commission on Human Rights and court, and the guide to filing a complaint with the Division of Human Rights.

It is a choice, not an automatic cancellation

The federal law does not erase arbitration agreements. It applies "at the election of the person alleging" the conduct, which means that person may still decide to arbitrate.⁠^[1] Arbitration and court differ in privacy, procedure and who decides the case; the guide to suing in court in a New York employment case describes the court side.

If you are trying to work out where you stand, it helps to gather a few things first: every document you signed or clicked through when you were hired, any later handbook acknowledgments or policy updates, and a simple timeline showing when the conduct started and when it most recently happened. Related questions about confidentiality are covered in the guide to non-disclosure agreements in sexual harassment cases, and contract terms that cut the time to sue are covered in the guide to contracts that shorten filing periods.