As I sit here safely ensconced in my seventh decade, I occasionally wonder, “What’s so great about getting older?” First, of course, growing older is far better than the alternative. But there may be other bad things that happen when one grows old. Congress appears to think so: It is working toward enacting federal laws to limit (or bar completely) the application of mandatory arbitration agreements to older Americans.
When Congress enacted the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2022 (EFAA), a key feature of the statute was the creation of an exemption from mandatory arbitration “with respect to a case” alleging claims of sexual assault and gender-based discrimination and harassment. The carve-out for these claims came in the wake of Harvey Weinstein, Roger Ailes and #MeToo, when legislators decided that workers subjected to sex or gender-based conduct should be able to bypass arbitration and have their claims heard by juries. Notably, the EFAA did not extend to any of the other protected categories under Title VII.
