In a recent Corporate Compliance Insights article, Thompson Coburn partner Michael Kun examines how the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), a federal law enacted in 2022 to keep sexual harassment and sexual assault claims out of arbitration, is generating significant interpretive uncertainty. Although the legislation was intended to provide targeted protections for employees, Mike says that how courts interpret the statute could carry broader implications that extend beyond individual harassment claims.
While the EFAA’s title suggests a clear and limited purpose, Mike explains that courts have quickly diverged over how broadly it should be applied.
“While the scope of the EFAA appears to be set forth succinctly in its title, there has been much disagreement about it,” Mike writes. He says that if courts determine the statute invalidates arbitration for an entire lawsuit, rather than only the specific harassment or assault claims, plaintiffs may be able to avoid arbitration for other claims that would normally be subject to arbitration agreements.
Mike analyzes the most significant appellate decision to date addressing the scope of the EFAA, a February ruling from the Sixth Circuit in Bruce v. Adams and Reese. In that case, the court held that when a lawsuit includes both sexual harassment or sexual assault claims and no- sexual claims, the EFAA bars arbitration of the entire lawsuit, not just the harassment related claims.
He explains this interpretation could open the door for broader challenges to arbitration agreements and reshape how multi claim employment disputes are litigated going forward.
Read the full article here.
