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.
The EFAA’s scope
The EFAA amended the Federal Arbitration Act to provide that pre‑dispute arbitration agreements are unenforceable with respect to “a case” involving ”sexual harassment” or “sexual assault.” Congress’ use of the phrases “a case” and “sexual harassment” have become the focal point of the interpretive divides.
On its face, the statute does not specify whether only the sexual harassment and sexual assault claims are exempt from arbitration or whether the presence of a single covered claim invalidates arbitration for the entire action.
Nor does the statute define “sexual harassment” beyond referencing the term.
That omission has triggered the disputes about whether the EFAA applies only to conduct that meets the traditional definition of “sexual harassment” – quid pro quo harassment, unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature – or whether it also encompasses broader “sex‑based harassment” claims that do not involve sexual content, such as sex-based stereotyping, sexist insults or hostility toward women that is not sexual.
These interpretive struggles have produced inconsistent rulings and a growing sense that the US Supreme Court will need to resolve these issues. Until that happens, employers and employees face uncertainty about those issues.
Those uncertainties may extend far beyond requiring employers to litigate any individual claims in cases that include sexual harassment or sexual assault claims. They could arguably require employers to litigate class and collective actions in court even where an employee has signed an arbitration agreement with a class- or collective-action waiver.
How could that be? How could a statute precluding arbitration of sexual harassment and sexual assault claims possibly affect class and collective actions that have nothing to do with sexual harassment or sexual assault?
Imagine an employee has signed an arbitration agreement with an otherwise enforceable class or collective action waiver. Typically, if employees with such agreements file a class or collective action alleging, for example, classwide wage-hour violations, they must arbitrate their individual claims and the class or collective claims will be dismissed. But imagine further that the employee files a class or collective action alleging classwide wage-hour violations and that the employee includes a sexual harassment claim in the same lawsuit.
Because the class- or collective-action claims are part of the same “case” as the sexual harassment claim, could a court rule that the class and collective action claims are also not subject to arbitration? If so, might employees with arbitration agreements start including sexual harassment claims in class or collective action lawsuits to try to obtain such a ruling? Or might attorneys representing individuals on sexual harassment claims look to have those persons also act as class representatives in class or collective actions?
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Read moreDetailsEntire lawsuits or only covered claims
The most significant appellate decision to date addressing the scope of the EFAA comes from the 6th Circuit in Bruce v. Adams and Reese.
In its February decision in Bruce, the court held that where a plaintiff’s lawsuit includes both sexual harassment or sexual assault and non-sexual harassment or non-sexual assault claims, the EFAA bars arbitration of the entire lawsuit, not just the sexual harassment claim.
The court concluded that the statutory text — specifically, Congress’s choice to refer to “a case” rather than “a claim” — means that once a lawsuit includes a covered sexual harassment or assault allegation, the arbitration agreement is unenforceable as to all claims in that action.
Courts outside the 6th Circuit have reached divergent conclusions, often doing so in decisions that are not published. The California trial courts in particular have struggled with the statute’s boundaries and have not reached consensus on whether the statute invalidates arbitration for the entire lawsuit or only for the covered claims.
The uncertainty outside the 6th Circuit can only lead parties to speculate about how cases will be treated in a particular jurisdiction or by a particular judge.
‘Sex harassment’ vs. ‘sexual harassment’
The second major interpretive challenge concerns the scope of the term “sexual harassment.” The statute does not define it, and courts have been forced to determine whether Congress intended to incorporate the traditional definition of “sexual harassment” or something broader.
Under a narrow reading, the EFAA applies only to harassment that is sexual in nature, such as requests for sexual favors, sexual advances or sexual comments. Under this view, sex‑based harassment, like gender stereotyping, sexist insults or hostility toward women that is not sexual, would not fall within the statute.
Employers have argued that because Congress used the term “sexual harassment,” courts should not expand the statute to include sex‑based harassment.
Yet counsel for employees have argued that Congress intended the EFAA to protect victims of workplace harassment rooted in sex discrimination more broadly, not only harassment with overt sexual content. They point to the statute’s remedial purpose and the legislative history, emphasizing the need to protect victims of gender‑based workplace misconduct.
Some courts have been receptive to this broader view, especially in jurisdictions that interpret “sexual harassment” expansively under state law. But others have been reluctant to extend the statute beyond its literal wording.
Until this issue is resolved, likely by the Supreme Court, the courts can be expected to continue to reach inconsistent results.
Practical implications for employers
The EFAA has unquestionably reshaped employment litigation, but its ambiguities have generated significant confusion. Employers should expect employees to argue that the EFAA extends not only to sexual harassment and sexual assault claims but also to sex-based harassment claims.
Following Bruce, employers should also expect employees to argue that all claims in a “case” are excluded from arbitration, not just the sexual harassment or sexual assault claims. And employers should expect those arguments to gain more traction, requiring them to litigate a wide variety of individual claims with individuals who have signed arbitration agreements — discrimination, retaliation, breach of contract and individual wage-hour disputes.
But what about class and collective actions?
It will only be a matter of time before an employee with an otherwise enforceable arbitration agreement — one with a class- and collective-action waiver — files a wage-hour class action or collective action against an employer and asserts a sexual harassment, sex harassment or sexual assault claim as part of the same case. And the court will have to decide if the EFAA effectively invalidates the arbitration agreement as to the wage-hour claims.
Michael Kun is a partner and co-chair of the labor and employment practice group at Thompson Coburn in Los Angeles. He defends employers in high-stakes wage and hour, breach of contract, discrimination, and harassment cases. He has litigated more than 200 wage and hour class and collective actions nationwide. 
