On March 3, 2022, President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) into law. The EFAA amends the Federal Arbitration Act (FAA) to prohibit employers from enforcing mandatory arbitration provisions that relate to a “sexual assault dispute” or a “sexual harassment dispute.” In broad strokes, employees party to arbitration agreements are able to choose – but may not be required – to bring claims involving sexual assault or sexual harassment in federal, state or tribal court or proceed to arbitration.

Since the EFAA’s enactment, two issues have recurred in courts around the United States, including in New York, related to (i) whether employees who bring both sexual assault or sexual harassment and non-sexual assault or non-sexual harassment claims in one suit must resolve the non-sexual assault or non-sexual harassment claims in arbitration pursuant to a valid arbitration agreement and (ii) when a dispute is deemed to have accrued for purposes of being considered covered by the EFAA.