We previously reported on the enactment of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”), a law that amended the Federal Arbitration Act (“FAA”) to preclude mandatory arbitration of sexual harassment and sexual assault cases. After the EFAA, employers utilizing mandatory arbitration programs must carve out sexual harassment and sexual assault disputes from the list of claims that employees must arbitrate. Employees have the option of pursuing sexual harassment and sexual assault claims through arbitration if they wish, or they may pursue such claims in federal, state, or tribal courts.

One question that we raised when Congress passed the EFAA was what impact the law would have when an employee asserts sexual assault/sexual harassment claims along with other employment claims, such as pairing a sexual harassment claim with a race discrimination or retaliation claim. Under the EFAA, one claim can be compelled to arbitration, while the other cause of action (sexual harassment) cannot be. One federal district court has finally addressed this question, deciding in twin companion cases filed against a “virtual real estate” company that its employees were relieved from arbitrating any claims against the company if they asserted plausible claims of sexual harassment or sexual assault. Johnson v. Everyrealm, Inc., Case No. 22 Civ. 6669 (PAE), 2023 WL 2216173 (S.D.N.Y. Feb. 24, 2023) (“Johnson”); Yost v. Everyrealm, Inc., Case No. 22...

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