In March 2022, President Joe Biden signed the bipartisan Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”). The Act provides that an employee alleging sexual harassment or assault may pursue their case in court, rather than in arbitration, regardless of any pre-existing arbitration agreement. Since its enactment, courts have been silent as to the scope of this amendment, leaving many wondering whether the EFAA renders an arbitration clause unenforceable as to the entire case, or merely the claims within a case that pertain to sexual harassment.

Almost a year after the EFAA’s enactment, a New York federal court answered this question after an employee brought sexual harassment claims against his employer, along with claims for race discrimination and pay discrimination. In Johnson v. Everyrealm, Inc., No. 22-cv-6669 (S.D.N.Y. Feb. 24, 2023), the court held that the language of the EFAA clearly invalidates any arbitration clause as is applies to an entire case involving sexual harassment. Therefore, employees won’t have to separately litigate their sexual harassment claims in court while pursuing their other legal claims against the employer in a confidential arbitration.

Why does this matter? With this newfound protection, sexual harassment victims can no longer be forced to resolve any of their claims in confidential arbitration. By removing unnecessary barriers to litigation, this holding ensures that employees are not forced to split their claims and wastefully litigate in separate forums. Now, not only can employees hold their employers publicly accountable for sexual harassment and discrimination, but they can expose their employers for retaliating against them after reporting such harassment and discrimination.  This decision is hopefully the first of many solidifying the intent of the EFAA to protect sexual harassment victims by paving the path towards litigation.