A legal divide among federal district courts is growing over the proper standard for determining when a recent federal law banning forced arbitration of workplace sexual misconduct claims is applicable.
Congress reshaped the litigation landscape in 2022 after it passed the bipartisan Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act to curb the use of mandatory predispute arbitration pacts in employment contracts, allowing alleged victims of workplace harassment to get their day in court. This marked a significant win for the #MeToo social justice movement.
Since then, district courts have been grappling with a slew of legal disputes over the law’s applicability, including the appropriate pleading standard for sexual assault or harassment claims that should fall under the arbitration exemption. Depending on how strict that pleading standard is, plaintiffs may encounter significant obstacles in defeating their employer’s motion to enforce the arbitration agreement at issue.
“Uncertainty never is helpful to parties in terms of making planning decisions regarding how” to approach their cases, said Sarah Rudolph Cole, a law professor at Ohio State University and director of the school’s Program on Dispute Resolution.
That lack of clarity stems from some judges finding that the EFAA applies when a worker alleges plausible claims, which...
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