Ending Forced Arbitration Act: Where sexual assault and harassment claims stand

Although it was signed into law more than four years ago, the self-descriptive Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) (9 U.S.C. §§ 401-02) continues to produce new challenges and novel rulings by courts across the country.

For example, in Kerim v. ABM Industries Inc., 2026 WL 2030769 (S.D.N.Y. July 13, 2026), the district court held the EFAA did not preclude arbitration of an employment retaliation claim premised on an internal complaint of sexual harassment where the plaintiff did not allege facts showing she possessed a good faith, reasonable belief that she opposed unlawful sexual harassment by her employer, and in Ai v. Tencent Am. LLC, 2026 WL 2170875 (N.D. Cal. July 28, 2026), the court ruled that alleged gender-based comments were insufficiently severe or pervasive to trigger the anti-arbitration provisions of the EFAA.

This update addresses some of the most recent EFAA rulings and trends, as well as their backdrop and implications, including the very recent opinions in Chin v. DoorDash, Inc., 2026 WL 2982141 (Cal. Ct. App. Oct. 5, 2026) and Ding v. Structure Therapeutics, Inc., 187 F.4th 1231 (9th Cir. 2026).

How did we get here: The #MeToo movement and Congress' response

Although the EFAA was plainly designed to exempt claims of sexual harassment and assault (and only such claims) from arbitration, the statute has been weaponized by plaintiffs' attorneys in the relentless pursuit of potentially larger jury verdicts, which depend on evading otherwise enforceable arbitration agreements.

President Biden signed the EFAA into law on March 3, 2022. The law's legislative history confirms it was intended to exempt claims of workplace sexual harassment and assault from what the plaintiffs' bar (and the statute itself) pejoratively refer to as "forced arbitration." Its passage was a direct, albeit belated, response to the #MeToo movement, which began in the fall of 2017 when allegations of sexual misconduct involving Hollywood mogul Harvey Weinstein first surfaced.

Supporters of the law claimed it would encourage more survivors to shine a light on sexual misconduct in the workplace that for years had been ostensibly ignored by employers and hidden behind closed doors in "forced arbitration" proceedings. As the congressional legislative record shows, the bill's bipartisan supporters in Congress sought to end "mandatory arbitration of sexual harassment claims, [which] would help to put a stop to the culture of silence that protects perpetrators at the cost of their victims." H.R. Rep. No. 117-234, at 11 (2021).

On the Senate floor, where the bill passed by a voice vote rather than a roll-call vote, proponents of the bill made clear that the law was to be construed narrowly, applying exclusively to claims of sexual harassment and assault. Indeed, Sen. Joni Ernst (R-Iowa) stated, "[W]e agreed that harassment or assault claims should not be joined to an employment claim without a key nexus. Harassment and assault allegations are very serious and should stand on their own. The language of this bill should be narrowly interpreted. It should not be used as a mechanism to move employment claims that are unrelated to these important issues out of the current [court] system . . . it is also very important to me that those claims stand separate from any other kind of claim." 168 Cong. Rec. S625 (daily ed. Feb. 10, 2022).

1. Do the EFAA's protections apply to an entire "case" or only to specific "claims"?

One of the first disputes to arise following the EFAA's enactment was whether the presence of a lone, often unrelated, claim of sexual harassment exempts the entire case from arbitration or if the exemption applies only to the discrete claim of sexual harassment or sexual assault. Based on a plain reading of the statute's imprecise language, the overwhelming trend seems to be toward a "one-and-done" analysis, resulting in the broad deployment of tangential and even frivolous sexual harassment claims designed to prevent arbitration of all other unrelated claims asserted in the case.

Until February 2026, when the 6th Circuit issued its decision in Bruce v. Adams & Reese, 168 F.4th 367 (6th Cir. 2026), holding that a lone sexual harassment claim exempts the entire case from arbitration, this issue had not been adjudicated by a federal appellate court. Since then, both the 2nd Circuit (Diaz-Roa v. Hermes Law, PC, 2026 WL 2931801 (2d Cir. Sept. 30, 2026)) and the 9th Circuit (Ding v. Structure Therapeutics, Inc., 187 F.4th 1231 (9th Cir. 2026)) have similarly interpreted the EFAA.

2. Do sex or gender discrimination and harassment claims constitute "sexual harassment"?

One area in which courts have begun to push back against the spreading misuse of the EFAA is by limiting the types of claims within its reach. Specifically, courts have sporadically declined to apply the protections of the EFAA in cases in which the plaintiff is really alleging sex or gender discrimination, not sexual harassment or assault. The plaintiffs' bar, which, for decades prior to enactment of the EFAA, seemed to know sexual harassment when it saw it, now finds itself alleging that any form of differential treatment based upon a plaintiff's sex or gender (broadly construed) is essentially indistinguishable from "sexual harassment."

The relevant language of the EFAA defines a "sexual harassment dispute" as a claim involving conduct that is "alleged to constitute sexual harassment under applicable Federal, Tribal, or State law." 9 U.S.C. § 401(4). So far, many federal courts have held that plaintiffs must plausibly allege "severe or pervasive" harassment (where that standard applies) characterized by unwelcome sexual advances and/or physical or verbal harassment of a sexual nature in order to trigger the arbitration-killing provisions of the EFAA. See, e.g., Singh v. Meetup LLC, 750 F. Supp. 3d 250 (S.D.N.Y. 2024); Einkorn v. UMortgage, 2025 WL 3023412 (E.D. Pa. Oct. 29, 2025).

These cases, however, have not prevented employee-side attorneys from conflating allegations of gender discrimination with allegations of sexual harassment in order to invoke the EFAA and to upend otherwise enforceable arbitration agreements. Recently, the California Court of Appeal determined that a plaintiff had sufficiently alleged sexual harassment under the EFAA in a case involving harassment based on sexual orientation. Decloedt v. Radnet Mgmt., Inc., 121 Cal. App. 5th 732 (2026). There, the court held that harassment based on the plaintiff's sexual orientation, despite the absence of any sexual overtures or comments of a sexual nature, could constitute "sexual harassment" under California's Fair Employment and Housing Act sufficient to invoke the EFAA.

3. What is the appropriate pleading standard: "plausible" or merely "non-frivolous"?

Since 2023, when litigation on this issue kicked off, there have been two schools of thought and the leading authorities of each have not changed: Are "plausible" allegations of sexual harassment/assault necessary to invoke the EFAA or must the claims be merely "non-frivolous" (obviously, a far more forgiving standard). From the perspective of employer-side lawyers, adoption of the nominally more burdensome plausibility standard helps screen out claims of sexual harassment/assault whose primary purpose is to shield the entire lawsuit from arbitration. Conversely, employee-side counsel advocate for the less burdensome non-frivolous standard in order to keep claims of alleged sexual harassment in the public spotlight--and, more importantly, employment claims in general out of arbitration.

The Southern District of New York recently embraced the plausibility standard in Kerim v. ABM Industries. In Kerim, the plaintiff alleged sexual harassment and retaliation for reporting such harassment to her employer. 2026 WL 2030769 (S.D.N.Y. July 13, 2026). The employer-defendant moved to dismiss and compel arbitration, and Kerim opposed by invoking the EFAA. The district court agreed with the employer that the EFAA did not preclude arbitration of Kerim's claims. The court noted that, to invoke the EFAA, a plaintiff must assert a "plausible" claim of sexual harassment, and Kerim failed to allege conduct constituting sexual harassment that occurred after the EFAA's effective date (March 3, 2022).

This analysis was also recently endorsed by the Northern District of California in Ai v. Tencent, where the court granted the employer's motion to compel arbitration and rejected application of the EFAA because the plaintiff did not assert plausible allegations of severe or pervasive sexual harassment. 2026 WL 2170875 (N.D. Cal. July 28, 2026).

Other courts have held that the language of the EFAA merely imports a non-frivolous pleading standard for claims of sexual harassment, substantially lowering the pleading bar for plaintiffs. Notably, this view has recently been trending in the Central District of California, with several courts adopting the low-bar non-frivolous pleading standard. See, e.g., Brown v. Lululemon USA Inc., 2026 WL 458644 (C.D. Cal. Jan. 28, 2026).

Uniform adoption of the plausibility pleading standard for invoking the EFAA may curb plaintiffs' enthusiasm for stretching the statute beyond its purpose. If a sexual harassment claim cannot satisfy the federal pleading standard, why should it be sufficient to invalidate an otherwise enforceable arbitration agreement? To permit otherwise flies in the face of the Supreme Court's clear recognition of the Federal Arbitration Act's command to "place arbitration agreements 'on an equal footing with all other contracts.'" Kindred Nursing Ctrs. Ltd. P'ship v. Clark, 581 U.S. 246, 248 (2017). In short, are there any contracts other than those concerning employment arbitration that can be voided so effortlessly by one of the parties?

4. May a plaintiff waive rights under the EFAA?

In Chin v. DoorDash, the California Court of Appeal addressed whether the plaintiff waived his rights under the EFAA to avoid arbitration when he initially failed to invoke the statute in opposition to the employer's motion to compel arbitration, and, thereafter, participated in arbitration without objection for almost a year. 2026 WL 2982141 (Cal. Ct. App. Oct. 5, 2026). Specifically, Chin initially commenced a lawsuit against DoorDash alleging, inter alia, whistleblower retaliation and wrongful termination in violation of public policy. DoorDash moved to compel arbitration; Chin opposed the motion but did not raise the EFAA in doing so.

The trial court granted the motion to compel. Thereafter, Chin participated in the arbitration proceeding for almost a year before filing a second lawsuit in state court in which he alleged sexual harassment and a claim for declaratory relief in which he sought to stay the pending arbitration and consolidate the claims alleged therein with his second civil action. The trial court granted the request. Notwithstanding Chin's conduct seemingly waiving the EFAA (see Morgan v. Sundance, Inc., 596 U.S. 411 (2022)), the trial court stayed the arbitration and consolidated Chin's claims (in doing so, it conceded it "was 'not happy with the way [the challenge to arbitration] has gone,'" and "did not 'like [its own] ruling,' but thought the law compelled it to rule for Chin"). 2026 WL 2982141, at *3.

DoorDash appealed. The Court of Appeal reversed, holding that by failing to raise the EFAA and timely assert a known claim for sexual harassment, Chin's claims belonged in arbitration because he waived his right to invoke the statute. The court in Chin distinguished the Ding case, supra, in which the 9th Circuit held that a plaintiff did not waive her right to opt out of arbitration when she failed to assert a sexual harassment claim and invoke the EFAA until "discovering" she had been sexually harassed when she reviewed documents produced by the employer during the course of the arbitration. Ding v. Structure Therapeutics, Inc., 187 F.4th 1231 (9th Cir. 2026).

The court in Ding found that the plaintiff did not waive her right to pursue her claims for discrimination, retaliation and harassment based on national origin and domestic violence victim status in court even though she had participated in the arbitration for more than 12 months before she purportedly became aware of a sexual harassment claim through discovery.

Where do we go from here?

Until the 6th Circuit's ruling in Bruce, the 9th Circuit's ruling in Ding, and the 2nd Circuit's recent opinion in Diaz-Roa, practitioners had little in the way of federal appellate guidance on the EFAA. Still, courts nationwide (and many in the same circuit) differ markedly concerning the proper pleading standard and even what constitutes a "sexual harassment dispute." While the latter will continue to vary from jurisdiction to jurisdiction depending on state and local laws, there is every reason for appellate courts, and, probably inevitably, the United States Supreme Court, to definitively resolve the appropriate pleading standard as well as the question of whether the EFAA exempts just claims of sexual harassment and assault or an entire case from arbitration.

Congress, of course, could also weigh in with clarifying legislation, but finding consensus on such issues in today's political environment seems like a long shot. In the meantime, employers will continue to incur significant fees compelling arbitration of claims filed in court that, in many instances, clearly belong in arbitration, and plaintiffs' attorneys will continue to fight arbitration wherever and whenever they encounter it in order to pursue lottery-sized jury verdicts.