II 118TH CONGRESS 1ST SESSION S. 1408 To amend title 9, United States Code, with respect to arbitration of disputes involving race discrimination. IN THE SENATE OF THE UNITED STATES MAY 2, 2023 Mr. BOOKER (for himself, Mrs. GILLIBRAND, and Mr. DURBIN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 9, United States Code, with respect to arbitration of disputes involving race discrimination. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Ending Forced Arbi- 4 tration of Race Discrimination Act of 2023’’. 5 SEC. 2. PREDISPUTE ARBITRATION OF DISPUTES INVOLV- 6 ING RACE DISCRIMINATION. 7 (a) IN GENERAL.—Title 9, United States Code, is 8 amended by adding at the end the following: 9 VerDate Sep 11 2014 00:28 May 11, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1408.IS S1408 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1408 IS ‘‘CHAPTER 5—ARBITRATION OF DISPUTES 1 INVOLVING RACE DISCRIMINATION 2 ‘‘Sec. ‘‘501. Definitions. ‘‘502. No validity or enforceability. ‘‘§ 501. Definitions 3 ‘‘In this chapter: 4 ‘‘(1) PREDISPUTE ARBITRATION AGREEMENT; 5 PREDISPUTE JOINT-ACTION WAIVER.—The terms 6 ‘predispute arbitration agreement’ and ‘predispute 7 joint-action waiver’ have the meanings given the 8 terms in section 401. 9 ‘‘(2) RACE DISCRIMINATION DISPUTE.—The 10 term ‘race discrimination dispute’ means a dispute 11 relating to conduct that is alleged to constitute dis- 12 crimination (including harassment), or retaliation, 13 on the basis of race, color, or national origin under 14 applicable Federal, Tribal, State, or local law. 15 ‘‘§ 502. No validity or enforceability 16 ‘‘(a) IN GENERAL.—Notwithstanding any other pro- 17 vision of this title, at the election of the person alleging 18 conduct constituting a race discrimination dispute, or the 19 named representative of a class or in a collective action 20 alleging such conduct, no predispute arbitration agree- 21 ment or predispute joint-action waiver shall be valid or 22 enforceable with respect to a case which is filed under 23 VerDate Sep 11 2014 00:28 May 11, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1408.IS S1408 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1408 IS Federal, Tribal, State, or local law and relates to the race 1 discrimination dispute. 2 ‘‘(b) DETERMINATION OF APPLICABILITY.—An issue 3 as to whether this chapter applies with respect to a dispute 4 shall be determined under Federal law. The applicability 5 of this chapter to an agreement to arbitrate and the valid- 6 ity and enforceability of an agreement to which this chap- 7 ter applies shall be determined by a court, rather than 8 an arbitrator, irrespective of whether the party resisting 9 arbitration challenges the arbitration agreement specifi- 10 cally or in conjunction with other terms of the contract 11 containing such agreement, and irrespective of whether 12 the agreement purports to delegate such determinations 13 to an arbitrator.’’. 14 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 15 (1) IN GENERAL.—Title 9, United States Code 16 is amended— 17 (A) in section 2, by inserting ‘‘or 5’’ before 18 the period at the end; 19 (B) in section 208, in the second sentence, 20 by inserting ‘‘or 5’’ before the period at the 21 end; and 22 (C) in section 307, in the second sentence, 23 by inserting ‘‘or 5’’ before the period at the 24 end. 25 VerDate Sep 11 2014 00:28 May 11, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1408.IS S1408 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1408 IS (2) TABLE OF CHAPTERS.—The table of chap- 1 ters for title 9, United States Code, is amended by 2 adding at the end the following: 3 ‘‘5. Arbitration of disputes involving race discrimina- tion .............................................................................. 501.’’. SEC. 3. APPLICABILITY. 4 This Act, and the amendments made by this Act, 5 shall apply with respect to any dispute or claim that arises 6 or accrues on or after the date of enactment of this Act. 7 Æ VerDate Sep 11 2014 00:28 May 11, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6301 E:\BILLS\S1408.IS S1408 pbinns on DSKJLVW7X2PROD with $$_JOB