Amy Epstein Gluck Talked to Law360 About Court Interpretations of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA)

Law360’s Amanda Ottoway explains that the EFAA, which amended the Federal Arbitration Act, precludes an employers’ predispute arbitration agreements from being enforced in cases alleging sexual harassment or sexual assault. The law applies to any “dispute or claim that arises or accrues” on or after its enactment on March 3, 2022.

Amy explained one court’s analysis that “No predispute arbitration agreement … shall be valid or enforceable with respect to a case … which is filed under … state law and relates to … the sexual harassment dispute,” is the “crux” of these cases.

Amy said, “When you look at the plain language of the statute, it says that ‘an arbitration agreement or provision within an agreement is not going to be enforceable with respect to a case which is filed under state law and relates to the dispute.’ It doesn’t say ‘claim,’ it says a ‘case,’ right?”

As courts consider what claims would fall under the EFAA’s ambit given this language, Amy discussed another court’s helpful insight into how broadly courts may interpret the EFAA, particularly when it comes to continuing violations for claims that accrue before the EFAA went into effect and continued after its enactment. More and more cases that employers thought would be determined in arbitration are now headed to court.

You can read the full article with Amy’s opinion on these cases here (subscription required).