Call Now
713-521-0059
In a sexual assault or sexual harassment case, usually yes. Under chapter 4 of Title 9 of the United States Code, the person alleging the conduct may elect that no pre-dispute arbitration agreement and no pre-dispute joint-action waiver shall be valid or enforceable with respect to a case relating to that dispute. The election belongs to the person alleging the conduct, not to the company. And a court, rather than an arbitrator, decides whether the law applies.
That last sentence is the one that matters most in practice, because the usual trick with an arbitration clause is that the arbitrator gets to rule on the arbitrator’s own authority. Here Congress took that away.
People sign these clauses constantly without knowing it. A gym membership. An onboarding packet. A lease addendum. A checkbox in an app. Then, after something happens, a company points to the paperwork and the claim quietly disappears into a private proceeding with no jury and no public record.
For a sexual assault or harassment claim, that is now a choice you make rather than one made for you.
Section 402(a) of Title 9 provides that, at the election of the person alleging conduct constituting a sexual harassment dispute or a sexual assault dispute, or the named representative of a class or collective action alleging such conduct, no pre-dispute arbitration agreement or pre-dispute 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 that dispute.
Section 402(b) provides that the applicability of the chapter is determined under federal law, and that a court, rather than an arbitrator, decides whether the chapter applies and whether an agreement is valid and enforceable, irrespective of whether the party resisting arbitration challenges the agreement specifically or as part of a larger contract.
Pre-dispute arbitration agreement means an agreement to arbitrate a dispute that had not yet arisen at the time the agreement was made. That is the ordinary case: you signed the gym contract, and later something happened. It does not reach an agreement to arbitrate made after the dispute arose.
Pre-dispute joint-action waiver means an agreement that would prohibit or waive a party’s right to participate in a joint, class or collective action in any forum. Class action waivers fall with the arbitration clause.
Sexual assault dispute means a dispute involving a nonconsensual sexual act or sexual contact as defined in 18 U.S.C. Section 2246 or similar applicable tribal or state law, including when the victim lacks capacity to consent.
Sexual harassment dispute means a dispute relating to conduct alleged to constitute sexual harassment under applicable federal, tribal or state law.
When the conduct occurred. The Act was enacted in 2022 and, by its own terms, applies to disputes or claims arising on or after the date of enactment. Conduct before that date raises a real question, and courts have addressed it. This is the single most important fact to establish at the outset.
Whether the case relates to the dispute. The statute reaches a case that relates to the sexual assault or harassment dispute. How far the related claims in the same case travel with it has been litigated, and the answer is not uniform.
Whether the clause is pre-dispute. A release or arbitration agreement signed after the incident, as part of a settlement or a severance, is a different document and is not covered.
The Speak Out Act addresses pre-dispute nondisclosure and non-disparagement clauses in sexual assault and sexual harassment disputes. It is about silence, not forum, and it is limited to clauses agreed to before the dispute arose. It is frequently confused with the arbitration statute and they do different work.
Texas now has its own answer on the silence question, in Chapter 129C, which is broader in some respects than the federal statute.
Arbitration is private. There is no jury, the record is generally not public, the discovery is usually narrower, appellate review is extremely limited, and the same institutional defendants appear repeatedly before the same pool of arbitrators.
For a survivor whose claim depends on what a company knew from prior complaints, narrow discovery and a sealed record are not neutral features. They are the reason the clause is in the contract.
Every statute and case linked above was read at its primary source. Texas statutes change every legislative session and case law is constantly changing.
This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney-client relationship.
Find the contract before you do anything else. The membership agreement, the lease, the onboarding packet, the app terms as they existed on the date you accepted them. Companies update terms of service, and the version that governs is the one in force when you agreed.
Do not assume the clause ends it. A great many people never call a lawyer because a company told them the contract requires arbitration. For an assault or harassment claim, that is now often wrong.
Raise it early. The election and the motion practice around it happen at the front of a case. It is far easier to resist arbitration at the outset than to unwind a proceeding already underway.
The first conversation is free, it is confidential, and it does not commit you to anything.
If someone has told you that your claim has to go to arbitration, bring us the paperwork. We will tell you whether the federal statute applies, what date question it turns on, and what the practical difference would be in your case.
You do not need to have the document to call. Most people do not, and it can usually be obtained.
If you are an advocate or a counselor asking on someone’s behalf, you are welcome to call with a general question.
There is no charge to talk, and no attorney’s fee unless there is a recovery.
Call 713-521-0059.
Usually not, if the arbitration agreement was signed before the dispute arose. Under 9 U.S.C. 402, at the election of the person alleging the conduct, no pre-dispute arbitration agreement is valid or enforceable with respect to a case relating to a sexual assault or sexual harassment dispute.
A court. Section 402(b) provides that applicability is determined under federal law and that a court rather than an arbitrator decides whether the chapter applies and whether the agreement is valid and enforceable.
Yes, where it is a pre-dispute joint-action waiver. The statute defines that as an agreement prohibiting or waiving the right to participate in a joint, class or collective action in any forum, and it falls under the same election.
The statute reaches pre-dispute agreements, meaning agreements to arbitrate a dispute that had not yet arisen when the agreement was made. An arbitration provision agreed to after the dispute arose is a different document and is not covered.
Yes, and it is often the whole fight. The Act was enacted in 2022 and by its terms applies to disputes or claims arising on or after the date of enactment. Conduct before that date raises a real question that has been litigated.
Arbitration is private, with no jury, a generally non-public record, narrower discovery and very limited appellate review. In a case that turns on what a company knew from prior complaints, those are not neutral features.
