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In a sexual assault or sexual harassment case, usually yes. Under chapter 4 of Title 9 of the United States Code, you may elect that no pre-dispute arbitration agreement and no pre-dispute joint-action waiver is valid or enforceable in a case relating to that dispute. The choice is yours, not the company’s.
A court, rather than an arbitrator, decides whether the law applies. That matters, because an arbitration clause often lets the arbitrator rule on the arbitrator’s own authority. What should not wait is finding the contract and raising the election early, because it is far easier to resist arbitration at the start than to unwind a proceeding already underway. Call 713-521-0059.
People sign these clauses all the time without knowing it. You may have agreed to one in a gym membership, an onboarding packet, a lease addendum or a checkbox in an app. Then, after something happens, the company points to the paperwork. Common places include:
For a sexual assault or harassment claim, arbitration is now a choice you make rather than one made for you.
Section 402(a) of Title 9 sets out the election. It applies at the election of the person alleging conduct constituting a sexual harassment dispute or a sexual assault dispute. It also applies at the election of the named representative of a class or collective action alleging that conduct. When the election is made, no pre-dispute arbitration agreement or pre-dispute joint-action waiver is valid or enforceable in a case that is filed under federal, tribal or state law and relates to that dispute.
Section 402(b) provides that whether the chapter applies is determined under federal law. A court, rather than an arbitrator, decides whether the chapter applies and whether an agreement is valid and enforceable. That is so whether the party resisting arbitration challenges the agreement specifically or as part of a larger contract.
The definitions are where most of the disputes happen, so they are worth reading closely.
A pre-dispute arbitration agreement is an agreement to arbitrate a dispute that had not yet arisen when the agreement was made. That is the ordinary case: you signed the gym contract, and later something happened. The statute generally does not reach an agreement to arbitrate made after the dispute arose.
A pre-dispute joint-action waiver is an agreement that would prohibit or waive your right to take part in a joint, class or collective action in any forum. Like the arbitration agreement, it concerns a dispute that had not yet arisen when the agreement was made. A class action waiver can fall with the arbitration clause when you make the election.
A sexual assault dispute is 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. That includes cases where the victim lacks capacity to consent. A sexual harassment dispute is a dispute relating to conduct alleged to be sexual harassment under applicable federal, tribal or state law.
There are three questions to answer first.
When the conduct happened. The Act was enacted in 2022 and, by its own terms, applies to any dispute or claim that arises or accrues on or after the date of enactment. Conduct before that date raises a real question, and courts have addressed it. The date is one of the first facts to pin down.
Whether your case relates to the dispute. The statute reaches a case that relates to the sexual assault or harassment dispute. How far other claims in the same case travel with it has been litigated, and courts have not all answered it the same way.
Whether the clause is pre-dispute. A release or arbitration agreement you signed after the incident, as part of a settlement or a severance, is a different document. It is generally not covered by this statute.
No. The two federal laws are often confused, but they do different work. The Speak Out Act addresses pre-dispute nondisclosure and non-disparagement clauses in sexual assault and sexual harassment disputes. It is about silence, not about where your case is heard. It is limited to clauses agreed to before the dispute arose.
Texas now has its own answer on the silence question in Chapter 129C. In some respects it is broader than the federal statute.
Arbitration is private. There is no jury, and the record is generally not public. Discovery is usually narrower, and appellate review is usually very limited. The same institutional defendants can appear again and again before the same pool of arbitrators.
Your claim may depend on what a company knew from prior complaints. If so, narrow discovery and a closed record can work against you.
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.
The membership agreement, the lease, the onboarding packet and the app terms all matter. Companies update their terms of service, and the version that usually governs is the one in force when you agreed. 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. The election and the motions around it happen at the start of a case, and it is far easier to resist arbitration then than to unwind a proceeding already underway.
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 may apply, what date question it turns on, and what practical difference it could make in your case. You do not need to have the document to call. Most people do not, and it can usually be obtained.
Schiffer Law Firm is a Houston personal injury firm with 50 plus years of combined experience representing injured people and survivors across Texas.
If you are an advocate or a counselor asking on someone’s behalf, you are welcome to call with a general question. We will not ask you for their name.
There is no charge to talk, and no attorney’s fee unless there is a recovery.
Written by Jacob Schiffer, Attorney, Schiffer Law Firm. State Bar of Texas No. 24105175.
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 in a case relating to a sexual assault or sexual harassment dispute.
A court. Section 402(b) provides that applicability is determined under federal law. It also provides that a court rather than an arbitrator decides whether the chapter applies and whether the agreement is valid and enforceable.
In many cases, where it is a pre-dispute joint-action waiver. The statute defines that as an agreement prohibiting or waiving the right to take part in a joint, class or collective action in any forum. The definition is limited to a dispute that had not yet arisen when the agreement was made. 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. It is generally not covered by this statute.
Yes, and it can decide the issue. The Act was enacted in 2022 and by its terms applies to any dispute or claim that arises or accrues 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 usually very limited appellate review. In a case that turns on what a company knew from prior complaints, those features can work against you.