The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act is Defined Broadly

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act is Defined Broadly

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”) allows victims of sexual assault and sexual harassment to have their day in court instead of allowing employers to enforce pre-dispute, mandatory arbitration agreements that force victims into private, confidential, often employer-friendly proceedings. Since its signing, California courts continue to grapple with the boundaries of the EFAA and what claims it permits to be excluded from arbitration. California courts have been defining the Act’s protections broadly, as the legislature intended.

The EFAA reads, in part, “at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, . . . no pre-dispute arbitration agreement or pre-dispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.” The Court of Appeal, in Liu v. Miniso Depot CA, Inc., et al., found that the EFAA allows a plaintiff to maintain her entire action in court if at least one sexual harassment claim is part of the litigation. The court in Liu found that the use of the phrase “with respect to a case” indicates that Congress intended for the whole litigation to be excluded from mandatory, pre-dispute arbitration, rather than just the claim for sexual harassment, or else Congress would have said “with respect to a claim” instead of “with respect to a case” in the statute’s carve-out. Both the California Supreme Court and the United States Supreme Court declined to revisit the decision in this case, and other courts are agreeing with this interpretation. See Ding v. Structure Therapeutics, Inc., 755 F. Supp. 3d 1200, 1218-19 (N.D. Cal. 2024) (noting that text of statute refers to “case” and not “claim”); see also Johnson v. Everyrealm, Inc., 657 F. Supp. 3d 535, 559 (S.D.N.Y. 2023) (stating that “the text of § 402(a) makes clear that its invalidation of an arbitration agreement extends to the entirety of the case relating to the sexual harassment dispute, not merely the discrete claims in that case that themselves either allege such harassment or relate to a sexual harassment dispute (for example, a claim of unlawful retaliation for a report of sexual harassment)”). If harassment victims were forced to bring some claims in arbitration, even if they could bring others in court, they would be prejudiced and discouraged from bringing the court claims regarding sexual harassment, contrary to the EFAA’s statutory purpose.

Recently, courts are considering whether non-sexual but gender-based harassment, like pregnancy harassment, is exempt from mandatory, pre-dispute arbitration under the EFAA.

Recently, the U.S. District Court for the Northern District of California found that the EFAA applies where sexual harassment or sexual assault are not directly pleaded as causes of action, but the broader allegations in the litigation encompass sexual harassment, allowing the entire litigation to remain in court. In Lee v. Marriott, 25-cv-01169-EMC (N.D. Cal. Sept. 21, 2025), Taylor Lee brought suit against Marriott International Inc. for pregnancy, pregnancy disability, and gender discrimination and for constructive discharge after she was retaliated against for bringing forth these complaints of discrimination, among others. Ms. Lee did not assert any causes of action for sexual harassment nor assault. During Ms. Lee’s employment with Marriott, she signed a mandatory pre-dispute arbitration agreement requiring her to arbitrate all employment claims, which Defendant Marriott sought to invoke at the beginning of the litigation. While such arbitration agreements are frequently enforceable under the Federal Arbitration Act (“FAA”), there are exceptions for when another law or equity precludes a court from compelling arbitration. The Court denied Marriott’s motion to compel arbitration since the company was not a party to the arbitration agreement based on the contract language, and found that the arbitration agreement would not be enforceable under the EFAA.

As to the latter, the Court first focused on the phrase “sexual harassment dispute” finding that the EFAA does not focus on plaintiff’s bringing sexual harassment cause of actions in their pleadings, but rather so long as the pleadings have sufficient facts to allege a sexual harassment dispute, then the EFAA can be invoked. The Court then turned to the allegations in plaintiff’s complaint The parties agreed, and the court found, that harassment based on sex includes harassment based on pregnancy. Both federal law and California law find “sex harassment” to include harassment based on pregnancy, thus the Court viewed “sexual harassment disputes” to mean that the broad definition of “sex” as defined under both systems of law is to be applied to the EFAA.

In Lee, the plaintiff’s complaint alleged that she was subjected to a pattern of pregnancy discrimination, such as her supervisor imposing discriminatory travel requirements after her return from leave and excluding her from workplace interactions once she became a mother. The supervisor made derogatory comments about working mothers and complained about having to do more work to cover for mothers who went out on leave. The company argued that the allegations concerned discrimination and not harassment, but the court rejected this argument, since personnel actions used to communicate a hostile message may form the basis of a harassment claim. Federal law does not draw a hard line between evidence demonstrating discrimination and evidence demonstrating harassment. The Court concluded that a “sexual harassment dispute” existed in the pregnancy discrimination case, making the EFAA applicable, such that arbitration could not be compelled. Finally, as in Liu, this Court also found that because there was a sexual harassment dispute, the whole litigation could not be forced into arbitration.

The recent wave of cases like Liu and Lee bodes well for workers who suffer sex or pregnancy discrimination and harassment in the workplace and want their day in court.

If you believe your employer has violated your workplace rights and want your day in court, contact Bryan Schwartz Law, P.C.