Edward M. Spiro and Christopher B. HarwoodDiverging Standards to Invoke the EFAA in the Southern District
The authors write "Enacted in 2022, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “EFAA”), amended the Federal Arbitration Act (the “FAA”) so that in cases 'alleging conduct constituting a sexual harassment dispute or sexual assault dispute,' a claimant is not bound by an otherwise valid arbitration agreement. 9 U.S.C. §402(a). The EFAA is expansive in scope; it captures virtually every such case that could be filed in a court in the United States."
December 16, 2024 at 11:44 AM
9 minute read
Enacted in 2022, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “EFAA”), amended the Federal Arbitration Act (the “FAA”) so that in cases “alleging conduct constituting a sexual harassment dispute or sexual assault dispute,” a claimant is not bound by an otherwise valid arbitration agreement. 9 U.S.C. §402(a). The EFAA is expansive in scope; it captures virtually every such case that could be filed in a court in the United States.
If properly invoked, the EFAA can be used to invalidate an otherwise valid arbitration agreement with respect to the entire case, not just the sexual harassment or sexual assault claims. The EFAA assigns to the court rather than an arbitrator the responsibility for determining the sufficiency of the allegations to invoke the EFAA. 9 U.S.C. §402(b). This threshold determination has led to diverging interpretations among Southern District judges.
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