On March 3, 2022, Congress enacted the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”) which precludes employers from requiring employees to arbitrate disputes related to sexual assault or harassment. The EFAA amends the Federal Arbitration Act (“FAA”) to give individuals asserting disputes related to sexual assault or harassment the option to bring those claims in court even if they previously agreed to arbitrate those claims before they arose. The EFAA applies prospectively to claims that accrued on or after its passage.
The EFAA gives courts, not the arbitrator, the authority to determine the validity and enforceability of an agreement requiring arbitration of sexual harassment and sexual assault claims and the power to determine whether the EFAA applies.
So, what do sexual assault and harassment disputes include? The EFAA defines a “sexual assault dispute” as “a dispute involving a nonconsensual sexual act or sexual contact ….” The EFAA defines a “sexual harassment dispute” as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State Law.”
What happens if the claimant has other claims not related to sexual assault or harassment? Well, that appears to be more of an open question.
In Mera v. SA Hospitality Group, LLC, 2023 WL 3791712 (S.D.N.Y. June 3, 2023), the plaintiff, who was subject to an arbitration agreement, brought sexual harassment claims under New York state law, as well as wage claims under the FLSA and New York state law. The district court held that: (1) the arbitration agreement was unenforceable as to the hostile work environment sexual harassment claims; and (2) the employee would be compelled to arbitrate his wage and hour claims that were unrelated to the sexual harassment claims.
But in Turner v. Tesla, Inc., 686 F.Supp.3d 917 (N.D. Cal. 2023), the plaintiff, who was also subject to an arbitration agreement, brought seven claims stemming from her employment at Tesla. Five of her claims stemmed from her allegation of sexual harassment and the other two involved a violation related to workplace safety and failure to provide wages upon termination, both under California law. The Court found that while the other two claims were not within the scope of the EFAA, they were substantially related to the plaintiff’s sexual harassment claims and, as such, should not be severed and compelled to arbitrate.
The EFAA merely presents another option to individuals subject to mandatory arbitration clauses. Thus, claimants can still elect to use the arbitration process they previously agreed to for a myriad of reasons including cost, efficiency, and privacy. However, it is important to note that employers cannot mandate employees to arbitrate disputes related to sexual assault or harassment.
If you or someone you know has experienced sexual assault or harassment in the workplace and previously signed an arbitration agreement, please consult with an experienced employment law attorney to discuss your options.
