Ever since the enactment of the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”) in 2022, the plaintiffs’ bar has made it Job One to insert often implausible claims of sexual harassment into all manner of disparate employment cases (having nothing whatsoever to do with sexual harassment) in an often successful effort to avoid arbitration. (The EFAA permits a person alleging a “sexual harassment dispute” to opt out of a predispute arbitration agreement that they have previously signed.)
You can’t really blame plaintiffs for trying to avoid arbitration. The fact is that plaintiffs and their percentage-interest lawyers really, really don’t like arbitration simply because it results in predictably fair outcomes for both sides without the prospect of a “runaway jury” verdict in the millions or even tens of millions of dollars of the kind we have chronicled.
Alas, there is a reason that the plaintiffs’ lawyers lovingly refer to the trial courts in California as “the Bank”!
Now, a federal court in California has reinforced the conclusion that merely labeling a claim “sexual harassment” is not enough to avoid arbitration. In Ai v. Tencent America LLC, 2026 WL 2170875 (N.D. Cal. July 28, 2026), the district court held that a plaintiff must plausibly allege conduct constituting sexual harassment under the law governing the claim or they will otherwise be required to arbitrate their claims.
The plaintiff in this case, a former product manager,...
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