A 2022 law intended to keep sexual harassment claims out of arbitration is creating unresolved interpretive disputes. Thompson Coburn’s Michael Kun argues the implications could reach beyond individual harassment cases. If courts conclude that the statute voids arbitration for an entire “case,” other claims may have a loophole to slip through.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), enacted in March 2022, was intended to prevent employees from having to arbitrate claims of sexual harassment or sexual assault through pre‑dispute arbitration agreements.
While the scope of the EFAA appears to be set forth succinctly in its title, there has been much disagreement about it.
Parties and courts have struggled with two issues in particular: (1) whether the EFAA precludes arbitration of an entire lawsuit or only to the sexual harassment or assault claims that are alleged in the lawsuit; and (2) whether the statute applies to “sex harassment” claims in addition to “sexual harassment” claims.
The resolution of those issues could affect many claims brought by individuals with arbitration agreements, potentially even determining whether those individuals may proceed with wage-hour class or collective actions.
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