credit: sabelskaya/ Adobe Stock The EFAA Can Be a Powerful Tool to Avoid Arbitration
Following motions to compel arbitration, Judge Engelmayer held in Yost that the EFAA does not invalidate an arbitration agreement unless the plaintiff pleads a cognizable sexual harassment claim that is sufficient to survive a Rule 12(b)(6) motion to dismiss. Judge Engelmayer further held in Johnson that that if a plaintiff pleads a cognizable sexual harassment claim, the EFAA precludes arbitration of all claims in the case, not just the sexual harassment claim, writes contributors Edward M. Spiro and Christopher B. Harwood.
April 17, 2023 at 01:03 PM
9 minute read
AnalysisThe Federal Arbitration Act (the FAA) was enacted to reverse the course of judicial hostility toward arbitration agreements, and it reflects a strong federal policy favoring arbitration. For some claims, however, Congress has explicitly overridden the FAA's general mandate to enforce arbitration agreements. A recent example of this—the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the EFAA)—was enacted in March 2022. The EFAA amends the FAA so that, at the election of a person alleging "conduct constituting a sexual harassment dispute," an otherwise valid arbitration agreement become unenforceable "with respect to a case which is filed under federal, tribal or state law and relates to … the sexual harassment dispute." 9 U.S.C. Section 402(a).
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